Big Oil Urges US Supreme Court To "Put a Stop" To Climate Deception Lawsuits
Lawyers representing oil and gas industry defendants in a climate lawsuit brought by the city and county of Honolulu are calling on the US Supreme Court to quash this suit and others targeting the industry as the cases start advancing towards trial. Warning that the industry faces the threat of billions of dollars in damage awards if the litigation proceeds, the industry lawyers argue in a freshly filed petition that the Court “should put a stop to it”, adding that this is likely the Court’s only chance to weigh in on these high stakes climate court cases in the near future.
In a certiorari petition submitted to the Supreme Court of the United States on February 28, the oil companies say the Court should decide “whether the state-law claims asserted in this nationwide litigation are even allowable before the energy industry is threatened with potentially enormous judgments.” Specifically, they are asking the Court to review a recent ruling from the Hawaii Supreme Court affirming that Honolulu’s climate lawsuit could advance towards trial under state tort law. The industry defendants in this case, which include major petroleum producers like Chevron, BP, and ExxonMobil, had argued unsuccessfully that federal law preempts state law in cases they say are about global climate change. Now they want the nation’s highest federal court to decide this question of whether federal law precludes state law claims in climate liability lawsuits.
Honolulu’s case is one of more than two dozen cases brought by municipal and state governments against fossil fuel companies alleging the companies lied to consumers and the public about the climate consequences of their products, effectively inflating sales and delaying and obstructing the transition away from fossil fuels. Some of the lawsuits seek to recover damage costs associated with localized climate impacts and adaptation, some seek to hold companies like Exxon liable for alleged consumer fraud, and others take a hybrid cost-recovery and consumer fraud approach. But for the most part the cases are all brought under state law, including tort claims like public nuisance and failure to warn as well as violations of state and local consumer protection statutes. A pair of cases filed by communities in Puerto Rico features federal racketeering charges as well as state law claims. Similar to tobacco and opioid litigation, these climate lawsuits attempt to hold a powerful industry accountable for the harmful effects of its products and for its deceptive conduct.
The new Supreme Court petition comes as many of the climate lawsuits have overcome initial procedural hurdles and are starting to address the substantive allegations – the “merits.” As industry lawyers explain in the petition: “Litigation on the merits in these cases is beginning in earnest, with discovery and pretrial proceedings underway in state courts.” Discovery is the pre-trial evidence gathering phase, and in these types of cases about corporate deceit, that involves obtaining internal documents and questioning former and current industry executives and insiders under oath.
Fossil fuel defendants in Honolulu’s case and other climate suits against them have tried to avoid getting to this stage in litigation by asserting that only federal courts should handle these proceedings. Courts have resoundingly rejected these arguments, but the bid to try to force the lawsuits into federal courts has effectively delayed the litigation from swiftly getting to trial. At every turn, industry lawyers have mounted challenges to procedural rulings against their clients. They have even sought US Supreme Court review several times already. In October 2020, the Supreme Court did grant their petition to review a narrow technical matter in a climate case brought by the city of Baltimore. The Court heard oral arguments in January 2021, and its decision directed several federal appeals courts to reconsider defendants’ arguments in a handful of climate suits including Baltimore’s case.
More recently, the Supreme Court in 2023 declined to take up the industry’s petitions to review appellate rulings affirming that these climate cases can proceed in state courts. In an order list issued on April 24, 2023, the Court denied cert petitions in climate cases filed by the city and county of Boulder in Colorado, the city of Baltimore, several coastal communities in California, Honolulu, and the state of Rhode Island. In denying the petition in Boulder’s case, the Court noted that Justice Samuel Alito – who owns stock in several oil companies – took no part in the decision, and that Justice Brett Kavanaugh was in favor of granting the petition.
It remains to be seen whether the Court will accept or decline Big Oil’s latest petition, which one climate law expert described as a “Hail Mary” bid.
“The fact that the Court denied cert in the Boulder case despite Kavanaugh’s dissent suggests there aren’t 4 votes to grant it in this case,” Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School, told Climate in the Courts.
Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia Law School, said he fully expected industry defendants to once again turn to the Supreme Court for help.
“This may be their best and last shot at avoiding multiple state court trials that would put them in a harsh spotlight and cost them very high legal fees, with a risk of massive judgments at the end,” Gerrard said. He added that he expects fossil fuel defendants in some of the other climate cases to try to further delay proceedings by requesting that courts pause or “stay” the litigation while the Supreme Court petition in Honolulu’s case is pending.
“If the Supreme Court takes the case we probably won't have a decision until well into 2025,” Gerrard told Climate in the Courts.
Oil Companies Say Lawsuits Pose a “Serious Threat” to Their Industry
Lawyers working on behalf of Chevron and ExxonMobil appear to be leading fossil fuel defendants’ latest plea to the US Supreme Court to intervene before the companies are forced to face trial. Theodore J. Boutrous Jr. of the firm Gibson, Dunn & Crutcher LLP - lead counsel for Chevron - and Kannon Shanmugam and Theodore Wells, Jr. of the firm Paul, Weiss, Rifkind, Wharton & Garrison LLP – representing Exxon – are among the named lawyers listed on the front of the new cert petition in Sunoco LP et al., Petitioners v. City and County of Honolulu et al.
In their petition, they argue that climate accountability lawsuits like Honolulu’s case are essentially impermissible attempts to regulate interstate and global greenhouse gas emissions, which they say are the source of the alleged climate damages. According to the industry lawyers, the Hawaii Supreme Court got it wrong in finding that “emissions were not the source of [Honolulu’s] injuries; [companies’] marketing and public statements were.” It is an argument they have repeatedly made in hearings and briefs in these climate cases, attempting to characterize the litigation as focused on global emissions while deflecting from the core allegations of deception, fraud and misleading marketing and advertising.
“Industry spokespersons keep trying to make these cases about regulation and policy and politics,” Parenteau said. “But they aren’t about any of that. They are about the recovery of some of the costs incurred as a result of the companies deliberate and ongoing campaign of lies and deception about the dangers of their products.”
More than three dozen communities across the US have filed climate accountability lawsuits against Big Oil over the past seven years, and more cases continue to be filed. The most recent filing came about two weeks ago by Chicago, the third-largest city in the country. “Those cases present a serious threat to one of the Nation’s most vital industries,” lawyers for Big Oil state explicitly in their cert petition.
Climate accountability advocates say the industry feels the walls closing in and is desperate to evade having to face trial.
“In light of the growing body of evidence of Big Oil’s climate fraud and deception, and lower courts’ continued rejection of their efforts to escape trial, it’s no surprise that fossil fuel companies are once again attempting to escape accountability,” said Alyssa Johl, general counsel with the Center for Climate Integrity. “Communities across the country deserve their day in court to hold Big Oil accountable for their climate lies and the damages they’ve caused.”
