October 6, 2021
Ford Motor Company v. Montana Eighth Judicial District Court, 592 U.S. ___ (2021) (Kagan, J.).
Special Edition Response by Jonathan Remy Nash†
Geo. Wash. L. Rev. On the Docket (Oct. Term 2020)
Slip Opinion | SCOTUSblog
Personal Jurisdiction in Climate Change
Common Law Litigation Post-Ford
A Special Edition Response
Recent years have witnessed attempts by plaintiffs, private and governmental, to use common law claims to assail large corporate greenhouse gas emitters.1 Many obstacles frustrate, and sometimes completely block, these lawsuits: one of the hurdles to pursuing a lawsuit is personal jurisdiction.
Could the Supreme Court’s decision in March 2021 in Ford Motor Company v. Montana Eighth Judicial District Court2—a case not about climate change—be a harbinger of better results on the personal jurisdiction front in climate cases? Over the course of the last decade, personal jurisdiction has undergone a radical transformation. In several cases, the Court changed, and largely reduced, the scope of the constitutional reach of personal jurisdiction. But the Ford case has bucked this trend. It upheld a state’s exertion of personal jurisdiction over an out-of-state automobile manufacturer where the plaintiff, who had purchased second-hand one of the manufacturer’s cars, was injured in an accident in the state while driving the car. Against the backdrop of the Court’s recent constriction of personal jurisdiction, how might the Ford case affect the exercise of personal jurisdiction in a climate change case?
The Evolution of Personal Jurisdiction
For many years, the best way for a plaintiff to sue multiple large corporations in a single forum—which would facilitate effective litigation to curtail climate change, where the harm results from multiple actors—was to rely upon general jurisdiction. General jurisdiction is one of two categories of personal jurisdiction that the Supreme Court recognized in the wake of the landmark case of International Shoe v. Washington.3 As the Court put it when it adopted the terminology of general jurisdiction, “[w]hen a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant.”4 For decades, lower courts usually treated major multistate corporations—such as oil companies—as susceptible to general jurisdiction in every state on the logic that they had contacts that were at least minimum contacts (and, realistically, probably far in excess of that) with every state.5 This broad understanding of general jurisdiction allowed a plaintiff to bring major corporate emitters into a single courtroom.
Then, in a pair of decisions in the 2010s, the Court suddenly—and severely—restricted the reach of general jurisdiction. After the Court’s decisions in Goodyear Dunlop Tire Operations, S.A. v. Brown6 and Daimler AG v. Bauman,7 with only a very limited exception, a corporation is subject to general jurisdiction in only two states: the corporation’s state of incorporation and the state of its principal place of business.8
The other category of personal jurisdiction—as distinguished from general jurisdiction—is specific jurisdiction. A court exercises specific jurisdiction when it “exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.”9 Specific jurisdiction cannot arise out of the mere “unilateral activity of those who claim some relationship with a nonresident defendant.”10 Rather, the defendant must have “purposefully avail[ed]” itself of “the privilege of conducting activities within the forum State.”11
The applicability of specific jurisdiction is far less predictable than that of general jurisdiction (both before and after constriction of general jurisdiction by the Court). The best example of this may be the question of when specific jurisdiction is available over a product manufacturer in a setting where the product has allegedly caused injury to the plaintiff. That setting has generated standard-like holdings, and indeed multiple decisions, featuring heavily fractured Courts with no majority opinions.12
The constriction of general jurisdiction has raised questions about, and put pressure on, the reach of specific jurisdiction. In Bristol-Myers Squibb Co. v. Superior Court of California,13 the Court found personal jurisdiction absent in California as to claims brought by plaintiffs—who were mostly not California residents—who alleged that they had been injured by products of the defendant, but not that the products were manufactured in or obtained from California. The California Supreme Court had upheld jurisdiction based upon what the U.S. Supreme Court called a “sliding scale approach to specific jurisdiction,”14 however, under which “the more wide ranging the defendant’s forum contacts, the more readily is shown a connection between the forum contacts and the claim.”15 In an opinion by Justice Alito for an eight-member majority, the United States Supreme Court declared that “[o]ur cases provide no support for this approach,” which, according to the Court, “resembles a loose and spurious form of general jurisdiction.”16
Enter Ford
The Court’s holding in Bristol-Myers Squibb seemed like an invitation for some corporation to seek another holding limiting specific jurisdiction; it was the Ford Company that did so. In the underlying cases, state supreme courts had upheld jurisdiction over Ford in the following setting: a plaintiff alleged injuries arising out of use of a Ford car that the plaintiff had purchased in used condition on the private market in a different state from the original sale (in new condition) from a Ford dealer.17 Ford argued that, because its sales in the forum states were not the cause of plaintiffs’ injuries, personal jurisdiction was absent.18
In the end, none of the eight Justices who heard the case agreed with Ford.19 In a majority opinion on behalf of five Justices, Justice Kagan emphasized that the test for specific jurisdiction allows for claims to “arise out of or relate to the defendant’s contacts with the forum,” and that “the back half” of that expression—following the word “or”—“contemplates that some relationships will support jurisdiction without a causal showing.”20 In other words, to whatever extent “arise out of” may turn on causation, “relate to” does not. Ford, therefore, separated the easier “relating to” jurisdiction from “arising out of” jurisdiction.
An Alternate Path for Personal Jurisdiction in Climate Litigation?
The majority opinion in Ford—like other Supreme Court personal jurisdiction decisions—does not speak directly to the question of personal jurisdiction in common-law climate change suits (nor, indeed, do the two opinions concurring in the judgment). Still, the case offers some takeaways—some positive and some negative—for that setting.
First, while general jurisdiction would be the preferred path for most climate change plaintiffs,21 Ford does not fashion specific jurisdiction in a way that accommodates the constriction of general jurisdiction.22 The reality is that this makes it harder for plaintiffs to pursue numerous defendants in a single forum, since corporate defendants (including major oil companies) will often have different home jurisdictions.23 It seems that that is unlikely to change any time soon.
Second, Ford recognizes that personal jurisdiction can inhere even where the defendant’s in-forum actions and in-forum effects do not directly cause the plaintiff’s alleged injury. This could have the effect of recognizing personal jurisdiction in suits—including common-law climate change suits—where preexisting law would not have recognized it.
For example, before Ford, the Ninth Circuit “explicitly adopted the ‘but for’ test for determining whether a plaintiff’s injury arises out of a defendant’s forum-related activities.”24 And it was that but-for test on which the district court in the City of Oakland v. BP P.L.C. case relied in dismissing the out-of-state oil companies for lack of personal jurisdiction,25 reasoning that personal jurisdiction was absent because “[i]t is manifest that global warming would have continued in the absence of all California-related activities of defendants.”26
The BP district court’s conclusion is subject to question even under the then-existing law: it ignores the fact that a reduction in the amount of greenhouse gas emissions might reduce the overall extent of climate change, and thus reduce the plaintiffs’ injury.27 And, while it might be difficult to assess the extent of the reduction that would result from a court order in the Northern District of California restricting the actions of a limited number of defendants, the fact remains that—at least under the law governing standing to bring suit—even a small harm is cognizable in court.28 That said, there is some reason to believe that the assemblage of defendants in the BP case might have had some non-trivial impact on the plaintiffs’ harm given the size of the defendants’ contributions to total atmospheric global greenhouse gas levels, at least according to a plaintiffs’ witness in the case.29 In short, the district court’s conclusion that but-for causation was absent is itself questionable.
To whatever extent the BP district court was correct in its conclusion about but-for causation, it seems that the Court’s opinion in Ford offers an alternate path, and might even suggest the opposite conclusion. Ford opens the possibility that the plaintiffs’ claims merely “relate to” the defendants’ forum contacts, a standard that does not turn on, and is less stringent than, but-for causation.
To be sure, Ford itself sounds in products liability, an area in which courts have developed a test for specific jurisdiction (one centered, not surprisingly, on the manufacturer sending the product in question into the stream of commerce) that is distinct from the test that would apply in a suit alleging nuisance, which is an intentional tort.30 Lower courts look to the Court’s decision in Calder v. Jones31 for the test to employ when considering a claim of intentional tort.32 The Court in Calder upheld jurisdiction in California where the out-of-state defendants were “primary participants in an alleged wrongdoing intentionally directed at a California resident.”33
The Ninth Circuit has drawn from Calder an “‘effects’ test” that requires, for there to be jurisdiction, “that the defendant allegedly have (1) committed an intentional act (2) expressly aimed at the forum state (3) causing harm that the defendant knows is likely to be suffered in the forum state.”34 And, in a recent iteration of the ongoing Pakootas v. Teck Cominco Metals, Ltd. litigation involving allegations of pollution-based injury,35 the Ninth Circuit has applied that three-prong test in the context of pollution-based injury.36 (To be sure, the Pakootas case concerned liability under the statutory regime of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”),37 but CERCLA was fashioned in part from common-law nuisance law.38).
To the extent that the Ninth Circuit test requires “but for” causation, the Supreme Court’s opinion in Ford surely opens up an alternative path to specific jurisdiction beyond the “arising out of”/“but for” rubric.39 But is that path broad enough to accommodate personal jurisdiction in a typical climate change nuisance suits? The answer is unclear. In concluding that personal jurisdiction was proper in Ford, the Court described how Ford’s in-state activities—directly offering for sale the models of car that the plaintiffs owned (even if not the particular cars the plaintiffs wound up owning), offering maintenance and repair services, and distributing replacement parts—could be seen to have supported the plaintiffs’ decisions to purchase those cars.40
It is unclear how this logic would translate to the setting of a climate change nuisance suit. To be fair, one would not expect the translation from a products liability case to a nuisance case to be straightforward. But consider how claims involving greenhouse gas emissions differ from typical pollution damage claims. In Pakootas, the Court found that the “but for” requirement was met because the defendant had discharged the pollution—an intentional act—into a river that was expressly “aimed at Washington”; “[r]ivers,” as the Ninth Circuit put it, “are nature’s conveyor belts,” causing harm that the defendant can reasonably predict will affect the forum state.41
One can readily imagine adapting the reasoning of Pakootas to the setting of typical air pollution—especially after Ford. Even if the winds are not prototypical “conveyor belts” in the way that rivers are, the prevailing direction in which winds will carry emissions still can be predicted with fair certainty.42 Computer modeling can make predictions about where pollutants will be deposited; the resulting harms are more predictable still.43
But the process by which greenhouse gas emissions affect the environment differs from the process by which emissions of typical air pollutants do. Typical air pollutants are local or regional in nature; they cause environmental degradation when they are relatively close to the earth’s surface.44 In contrast, greenhouse gas emissions are global pollutants, causing harm not by their presence near the earth’s surface, but rather by rising and remaining part of earth’s atmosphere.45 Indeed, the origin point of a greenhouse gas emission has no effect on the location of harm; “[a] molecule of carbon dioxide emitted in Florida causes the same degradation as a molecule emitted in Germany, China, South Africa, or anywhere else in the world.”46 It is one thing for “related to” personal jurisdiction to admit more attenuated versions of causation than the but-for variety; it is another for there to be no particular causal link between a pollution emission and the harm experienced in one distinct forum.
Indeed, there is an argument that, if jurisdiction is available over a putative defendant in one forum on account of the putative defendant’s greenhouse gas emissions anywhere on the planet, then it should be available in any forum where climate change harm is felt—which could well translate into most, if not all, forums. Personal jurisdiction as to emitters could start, practically at least, to resemble general jurisdiction, a form of personal jurisdiction the Court has narrowed and affirmatively declined to embrace in Ford.
Such a result is also in tension with the Ford Court’s emphasis on concerns of interstate federalism.47 The Ford Court explained that the states in which the plaintiffs resided and in which the underlying accidents occurred had “significant interests” in “enforcing their own safety regulations,” as compared to the states where the automobiles in question were originally sold.48 In comparison, it is much harder to see why California has a stronger regulatory interest with respect to national (or global) greenhouse gas regulation than does, say, Florida.49
Broad extension of personal jurisdiction in climate change nuisance cases start to bear a strong resemblance to general jurisdiction; such a result could obtain not only for national corporations (which under the old jurisdictional regime were seen to be subject to general jurisdiction in all states50), but also for far smaller operations that emit lesser amounts of greenhouse gases and are otherwise quite “local”—for example, a small dry cleaning operation.51 Consider that greenhouse gas emissions “result from a broad array of human activities, from agricultural to industrial, and across industrial sectors.”52 And the Environmental Protection Agency (“EPA”) itself has recognized that regulation of emitters of seemingly modest amounts of greenhouse gas emissions would sweep in millions of emitting sources.53 But the notion that small operations that emit greenhouse gas could be subject to jurisdiction anywhere the harms of climate change are felt seems quite extreme.54
To be sure, the risk of subjecting small actors to personal jurisdiction could be addressed by International Shoe’s “fairness factors.”55 It is also possible that (to the extent that fairness doesn’t do the required work), as the Ford opinion itself acknowledges, certain settings lie beyond the scope of the Court’s holding.56
Finally, it bears noting that, to whatever extent that some climate suits raise claims sounding in products liability—especially failure-to-warn claims57— it is hardly clear how (even though Ford itself was a products liability case) the Ford decision’s expansion of specific jurisdiction is of avail. In Ford, the manufacturer’s in-forum behavior was sufficiently related to the plaintiffs’ purchase of Ford products, even though the plaintiffs had not purchased their vehicles directly from Ford (in which case their claims might have arisen directly from Ford’s forum contacts). In contrast, it is not clear how a direct sale in a forum and an alleged failure to warn could somehow sufficiently “relate to” a plaintiff’s claim of climate change harm if the plaintiff’s claim does not “arise out of” those contacts (in which case resort to Ford would be unnecessary in the first place).
Beyond that, many of the cautions described just above in the context of nuisance litigation still seem to apply. It remains the case that the harm in the forum does not specifically arise from the sales of the product in the forum. And, as above, if the failure to warn in a particular jurisdiction were a sufficient ground for jurisdiction, then one could quickly see jurisdiction viable across all forums.
Conclusion
Ford recognizes a distinct new category of specific jurisdiction—“relating to” jurisdiction—an alternative that seems less demanding than “arising out of” jurisdiction. But it is difficult to gauge the impact of Ford, both in general and in particular in climate change nuisance cases. Ford, after all, is but the first flare illuminating a new portion of the constitutional landscape.58 It seems that Ford’s new test will not be a panacea for climate change nuisance plaintiffs. Moreover, while it may offer some additional latitude for plaintiffs to argue for, and for courts to find, personal jurisdiction, there are other hurdles, beyond personal jurisdiction, that dog such suits.59
† Robert Howell Hall Professor of Law and Associate Dean for Research, Emory University School of Law; Director of the Emory University Center for Law and Social Science; Director of the Emory Center on Federalism and Intersystemic Governance. Thanks to Richard Freer, Daniel Klerman, and Kay Levine for helpful comments. I am grateful to the editors of The George Washington Law Review Arguendo for inviting me to submit this essay. (In the interest of disclosure, I note that I filed a brief amicus curiae with the Supreme Court in support of the respondents in the Ford cases.)
1 Many such suits against corporations assert nuisance claims. See, e.g., City of Oakland v. BP P.L.C., 969 F.3d 895 (9th Cir. 2020). Some also assert claims for trespass. See City of New York v. Chevron Corp., 993 F.3d 81, 88 (2d Cir. 2021). The personal jurisdiction analysis for such claims should mirror those for nuisance claims. For ease of exposition, I refer in the text simply to nuisance claims.
Finally, I address below suits that raise products liability claims. See infra text accompanying note 58.
2 Ford Motor Co. v. Montana Eighth Jud. Dist. Court, 592 U.S. ___, 141 S. Ct. 1017 (2021).
3 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (holding that a party may be subject to the jurisdiction of the state court if the party has “minimum contacts” with the state).
4 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984).
5 See Jonathan Remy Nash, The Rules and Standards of Personal Jurisdiction, 72 Ala. L. Rev. 465, 486–89 (2020).
6 Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 915 (2011).
7 Daimler AG v. Bauman, 571 U.S. 117 (2014).
8 Id. at 137–38.
9 Helicopteros, 466 U.S. at 414 n.8.
10 Hanson v. Denckla, 357 U.S. 235, 253 (1958).
11 Id.
12 See Nash, supra note 5, at 494–97.
13 Bristol-Myers Squibb Co. v. Super. Ct. Calif., 137 S. Ct. 1773 (2017).
14 Bristol-Myers Squibb Co. v. Super. Ct., 377 P.3d 874, 889 (Cal. 2016), rev’d, 137 S. Ct. 1773.
15 Id. (quoting Vons Cos. v. Seabest Foods, Inc., 926 P.2d 1085, 1098 (Cal. 1996)) (internal quotations omitted).
16 Bristol-Myers Squibb, 137 S. Ct. at 1781.
17 See Ford, 141 S. Ct. at 1023–24.
18 See Ford, 141 S. Ct. at 1026 (“In Ford’s view, the needed link must be causal in nature . . . .”).
19 Justice Barrett participated in neither the consideration nor the decision of the Ford case. Id. at 1032.
20 Id. at 1026 (quoting Bristol-Myers Squibb, 137 S. Ct. at 1780).
21 See Jonathan Zasloff, The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate Change, 55 UCLA L. Rev. 1827, 1876 (2008) (noting that, under the then-applicable test for general jurisdiction, climate change plaintiffs “would be well advised to argue for general jurisdiction”).
22 See Ford, 141 S. Ct. at 1027 n.3 (“[W]e reject Justice GORSUCH’s apparent (if oblique) view that a state court should have jurisdiction over a nationwide corporation like Ford on any claim, no matter how unrelated to the State or Ford’s activities there.”).
23 See Bristol-Myers Squibb, 137 U.S. at 1784 (Sotomayor, J., dissenting) (criticizing the majority’s decision for “mak[ing] it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different States” and “will result in piecemeal litigation and the bifurcation of claims”).
24 Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997). The but-for test inquires as to whether the injuries sustained by the plaintiff in a given state would have occurred “but for” the defendant’s contacts with that state.
25 See City of Oakland v. BP P.L.C., No. C 17-06011 WHA, 2018 WL 3609055, at *3 (N.D. Cal. 2018), vacated and remanded on other grounds sub nom City of Oakland v. BP P.L.C., 969 F.3d 895 (9th Cir. 2020). The Ninth Circuit concluded that there was no federal question jurisdiction and remanded to the district court to determine whether there was any viable basis for federal jurisdiction. BP P.L.C., 969 F.3d at 901. Accordingly, the appellate court did “not reach the question whether the district court lacked personal jurisdiction.” Id. at 911 n.13. The court further noted: “If, on remand, the district court determines that the cases must proceed in state court, the Cities are free to move the district court to vacate its personal-jurisdiction ruling.” Id.
26 BP P.L.C., 2018 WL 3609055, at *3. In full, the district court reasoned:
“With respect to the second prong of the jurisdictional test, the required causal analysis is met if “but for” the contacts between the defendant and the forum state, the plaintiff’s injury would not have occurred. The question is therefore whether or not plaintiffs’ alleged harm—namely, the effects of global warming-induced sea level rise—would have occurred even absent each defendant’s respective California-related activities. It is manifest that global warming would have continued in the absence of all California-related activities of defendants. Plaintiffs have therefore failed to adequately link each defendants’ alleged California activities to plaintiffs’ harm.”
Id. at *3 (citation omitted).
27 Cf. Massachusetts v. EPA, 549 U.S. 497, 532–35 (2007) (ruling that EPA could not justify its refusal to regulate greenhouse gas emissions from motor vehicles on the ground that such an approach would be merely piecemeal, and thus indicating that the Clean Air Act required action that would ameliorate a problem, not necessarily solve it in its entirety).
28 See Jonathan Remy Nash, Standing’s Expected Value, 111 Mich. L. Rev. 1283, 1284 (2013).
29 See BP P.L.C., 2018 WL 3609055, at *1 (defendants (including a nonmoving resident California corporation) are “collectively . . . responsible for over eleven percent of the carbon and methane pollution that has accumulated in the atmosphere since the Industrial Revolution”).
30 See supra note 1.
31 Calder v. Jones, 465 U.S. 783 (1984).
32 See, e.g., Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (“Under our precedents, the purposeful direction or availment requirement for specific jurisdiction is analyzed in intentional tort cases under the “effects” test derived from Calder v. Jones . . . .”).
33 Calder, 465 U.S. at 790.
34 Dole Food Co., 303 F.3d at 1111.
35 See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 576 (9th Cir. 2018) (“This is a complex case that has been ongoing for fourteen years . . . .”). For discussion of an earlier iteration’s treatment of the extraterritoriality of the Comprehensive Environmental Response, Compensation, and Liability Act, see Jonathan Remy Nash, The Curious Legal Landscape of the Extraterritoriality of U.S. Environmental Laws, 50 Va. J. Int’l L. 997, 1009–11 (2010).
36 See Pakootas, 905 F.3d at 577 (“Claims for recovery of response costs and natural resource damages are ‘more akin to a tort claim than a contract claim.’” (quoting Ziegler v. Indian River County, 64 F.3d 470, 474 (9th Cir. 1995))).
37 42 U.S.C. §§ 9601–9675.
38 See E.I. DuPont de Nemours & Co. v. United States, 365 F.3d 1367, 1373 (Fed. Cir. 2004) (“CERCLA evolved from the doctrine of common law nuisance.”). The Ninth Circuit cited this language in Pakootas. See Pakootas, 905 F.3d at 577.
39 See Ford, 141 S. Ct. at 1026 (while specific jurisdiction “arising out of” forum contacts “asks about causation,” specific jurisdiction that is “related to” forum contacts “contemplates that some relationships will support jurisdiction without a causal showing”).
40 See id. at 1028 (noting that these in-state activities “make Ford money,” and, “by making it easier to own a Ford,” they also “encourage Montanans and Minnesotans to become lifelong Ford drivers”).
41 Pakootas, 905 F.3d at 578.
42 See, e.g., Shahram Hanifi, A Critical Review of Wind Power Forecasting Methods—Past, Present, and Future, 13 Energies 3764 (2020), https://www.mdpi.com/1996-1073/13/15/3764 (assessing the accuracy of wind power prediction models).
43 See Jonathan Remy Nash & Richard L. Revesz, Markets and Geography: Designing Marketable Permit Schemes to Control Local and Regional Pollutants, 28 Ecology L.Q. 569, 652–54 (2001) (discussing such modeling).
44 See id. at 576–78.
45 See id. at 576.
46 Nash, supra note 35, at 1013.
47 See Ford, 141 S. Ct. at 1030.
48 Id.
49 Cf. Int’l Paper Co. v. Ouellette, 479 U.S. 481, 497–99 (1987) (holding that the Clean Water Act did not preempt nuisance claim brought by plaintiff in one state against source in a second state under the law of the source state).
50 See supra note 5 and accompanying text; Chevron, 993 F.3d at 91–92 (highlighting how New York City’s attempt to sue multinational oil companies under state law implicated substantial interstate federalism, as well as international, concerns, and thus should not proceed).
51 See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 FR 31514, 31563 (June 3, 2010) (“Many printers and furniture makers use a variety of combustion equipment that has the potential to emit at least 100 tpy CO2, and many commercial dry cleaners have gas-fired driers that have the potential to emit at least 100 tpy of CO2”).
52 Jonathan Remy Nash, Beyond Kyoto: The Treatment of Outliers, 15 U.C. Davis J. Int’l L. & Pol’y 31, 33 (2008).
53 See supra note 49.
54 Cf. Utility Air Regulatory Group v. EPA, 573 U.S. 302, 312 (2014) (explaining that EPA had found it “necessary” to “tailor” its proposed regulation of greenhouse gas emissions sources because otherwise the regulatory program would “radically expand” Clean Air Act programs and make them “unadministrable”); see also id. at 324 (“The power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide falls comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text.”).
55 See Int’l Shoe, 326 U.S.at 317. It seems that the Court in Ford may have incorporated fairness directly into the minimum contacts analysis, rather than as a standalone consideration in the personal jurisdiction calculus. See Ford, 141 S. Ct. at 1025. Exploration of this point lies beyond the scope of this Essay.
56 See id. at 1028 n.4 (“[W]e do not here consider internet transactions, which may raise doctrinal questions of their own.”).
57 See Sean Lyness, Tangled Up in Procedure: The State and Local Climate Cases after Baltimore and Ford, Harv. Envtl. L. Rev. (forthcoming 2021).
58 See Thomas W. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 890 (2000).
59 See Chevron, 993 F.3d at 89–95 (finding state common law claims preempted by federal common law, and in turn any federal common law claims preempted alternatively by statute (for domestic emissions) and foreign policy concerns (for international emissions)); David A. Dana, The Mismatch Between Public Nuisance Law and Global Warming, 18 Sup. Ct. Econ. Rev. 9 (2010); Albert C. Lin & Michael Burger, State Public Nuisance Claims and Climate Change Adaptation, 36 Pace Envtl. L. Rev. 49 (2018).
Recommended Citation
Jonathan Remy Nash, Special Edition Response, Personal Jurisdiction in Climate Change Common Law Litigation Post-Ford, Geo. Wash. L. Rev. On the Docket (Oct. 6, 2021), https://www.gwlr.org/personal-jurisdiction-in-climate-change-common-law-litigation-post-ford.
