A recent Supreme Court decision allowing a soldier to sue a military contractor in state court undercuts the Trump administration’s efforts to erase state climate laws, New York state and a coalition of environmental groups contend.
The Department of Justice last spring sued New York and Vermont in an effort to invalidate the states’ “climate superfund” laws that seek payment from energy producers for greenhouse gas emissions. But in notices filed Tuesday and last week in two federal courts, groups supporting the states say the Supreme Court’s recent ruling suggests the states have the edge.
In their April 22 decision in Hencely v. Fluor Corp., the justices found that a soldier injured in a suicide bombing on an American base in Afghanistan can sue a military contractor in state court for failing to supervise the employee who built the explosive vest.
Former Army specialist Winston Hencely sued Fluor after an Army investigation faulted the company’s failure to supervise Ahmad Nayeb, an Afghan employee. Texas-based Fluor argued it could not be sued because it was working during wartime for the federal government.
In a 6-3 ruling written by Justice Clarence Thomas, the majority found that companies are protected when fulfilling government contracts — but Fluor failed to deliver on its duties.
The Conservation Law Foundation and other groups intervening in DOJ’s lawsuit against Vermont say the Supreme Court’s decision underscores that federal law does not always override state law.
The Trump administration’s claims against Vermont “fail for the same reasons as the preemption defense in Hencely,” the groups wrote.
Like the military contractor, DOJ in the Vermont Superfund case has “failed to point to a specific constitutional or statutory text” to support its theory, the groups said.
The Trump administration’s argument that “the Constitution’s structure implicitly preempts’ state laws ‘connected to’ interstate pollution ‘has no basis in the text of the Constitution,’“ the groups wrote. They added that the federal government also failed to establish a “significant conflict” between a “uniquely federal interest” and Vermont’s law.
The groups noted the Supreme Court held that a state law is not preempted “merely because there is an alleged ‘indirect burden on federal activities’ such as increased costs to the federal government.”
New York’s notice also pointed to the Supreme Court decision and said the federal government has “failed to identify a significant conflict” between the purported federal interest and the Empire State’s Climate Act.
The Department of Justice told the court Tuesday that the states’ reference to the Supreme Court decision is “irrelevant to this case and blind to binding precedent. “
Adam Gustafson, principal deputy assistant attorney general for DOJ’s environment division, argued that an appeals court in 2021 found that interstate pollution is an area of “uniquely federal interest” and that there is a conflict when a state seeks damages for emissions originating beyond its borders.
He added that Hencely, which covered a subject “entirely different from interstate pollution, did not cast any doubt on this longstanding precedent, much less implicitly overrule it.”
Environmental attorneys have also suggested the Supreme Court’s ruling in Hencely could affect the justices’ handling of an attempt by the oil and gas industry to quash lawsuits from local governments seeking compensation for the costs of climate change.
If the Trump administration wants to argue that federal law blocks state climate actions, it will need to point to a specific federal statute to support those claims, Dan Farber, a law professor at the University of California, Berkeley, wrote in a recent blog post.
“Arguments based merely on the inappropriateness of state regulation or the strength of the national interest involved in an issue are not going to be enough,” Farber said.
