The Supreme Court was scheduled to consider a potentially significant climate-change case at its conference last Friday: American Petroleum Institute v. Minnesota. The case did not appear among the cert denials in today's order list, suggesting the justices may still be considering whether to grant the case.
API v. Minnesota is one of several cases filed by state and local governments against energy companies seeking recompense for the harms caused by climate change, including the expenses state and local governments must bear to improve and adapt infrastructure to account for a warmer world. Because the federal common law of interstate nuisance is entirely displaced by the Clean Air Act, nearly all of these suits have been filed in state courts. Seeking to argue these cases are preempted, the energy company defendants have sought–unsuccessfully–to have these cases removed to federal court. Their removal arguments have been rejected in the 1st, 3rd, 4th, 6th, 8th, and 9th Circuit Courts of Appeals and, thus far, the Supreme Court has shown little interest in reviewing these decisions.
The apparent relisting of API v. Minnesota suggests one or more justices may think this case is worth a second look, despite the lack of a meaningful circuit split. Justice Kavanaugh previously indicated his interest in hearing a similar case, so perhaps he is writing a dissent from denial of certiorari, or working to convince his colleagues this case is worthy of the justices' attention.
