Fossil Fuel Lawyers Ignore Baltimore's Claims Of Deception, Say Supreme Court Should Rule City's Climate Case Belongs In Federal Court

Lawyers representing BP, Chevron, ExxonMobil and other big oil and gas companies are urging the U.S. Supreme Court to find that a climate liability lawsuit brought against them by the city of Baltimore raises numerous federal issues and inherently belongs in federal courts, where the industry sees a clear path to getting this and similar climate cases thrown out. The fossil fuel lawyers made this federal jurisdiction argument in a brief filed Nov. 16 in the Supreme Court, though the argument distorts what the legal claims are actually about and reaches beyond the very specific question the Supreme Court is reviewing in this case.

Baltimore and other cities and states (as well as one commercial fishing association) around the country are suing major fossil fuel producers for allegedly deceiving the public on the climate consequences of their products for purposes of delaying climate policies and preserving profits. The industry’s successful deception and disinformation campaigns, the lawsuits contend, have turned climate change from a manageable problem to a full-scale crisis unfolding in the form of extreme flooding and rising seas, searing heat, more severe storms and other impacts, and communities like Baltimore are demanding the industry help pay for these costly impacts.

In its Supreme Court brief, the fossil fuel industry does not once mention this alleged deception or fraudulent behavior. It instead argues the case is simply about global climate change and interstate greenhouse gas emissions, which are subject to federal regulations and raise issues of foreign and domestic policies and federal laws. The industry prefers to make these federal defenses rather than answer to allegations of deception (such as promoting/marketing harmful products) that are typically the province of state tort law. Baltimore brought its case under state law claims of nuisance and product liability theories as well as under a state statute, the Maryland Consumer Protection Act. Other cases seeking to hold the fossil fuel majors like Exxon and Chevron accountable for climate damages and alleged deception have similarly been brought under state law in state courts, from Honolulu to Boulder, Colo. to Rhode Island.

The attorneys for Big Oil have strategically punted all of these cases to federal courts, because that is where the cases have a higher likelihood of being dismissed, as two cases (one filed by Oakland and San Francisco, another by New York City) initially were. Those two cases have since been revived on appeal, but a smaller wave of climate litigation from about a decade ago ultimately failed in federal courts and set the precedent – which includes a Supreme Court opinion – that global warming lawsuits arising under federal common law are displaced by the Clean Air Act. This precedent left open the possibility of climate lawsuits proceeding under state law, as they currently are, though the industry contends the current crop of cases all must arise under federal common law.

The industry makes this argument in its brief recently submitted to the Supreme Court, though as a procedural matter the Court is deciding on a more technical question pertaining to the scope of appellate court review of remand orders, or orders sending cases back to state courts. In Baltimore’s case, the Fourth Circuit Court of Appeals agreed with a lower court that the case should be sent back to state court. The Fourth Circuit also rejected the oil companies’ argument that the entire remand order is subject to its review and that the court should hear a whole host of claims from the oil companies about why the case belongs in federal court. Three other appeals courts made the same ruling in other climate liability cases that review of remand orders is strictly limited.

The oil companies are challenging these rulings, arguing the scope of review is not strictly limited. This technical question pertaining to federal rules of civil procedure is what the Supreme Court is deciding, not necessarily whether Baltimore’s case (and other climate cases) belong in federal or state court.

But the companies say the Court should go beyond this question and determine that climate litigation belongs in federal court, period.

As industry attorneys conclude in their brief, “the better course is for the Court to reverse the [Fourth Circuit] judgment outright and hold that [Baltimore’s] claims belong in federal court.”

Baltimore will have a chance to respond and present its argument to the Supreme Court in a forthcoming brief.