Here's How Big Oil Wants The Supreme Court To Help Delay And Derail Climate Lawsuits

Story originally published by DeSmog

On January 19, 2021 — just one day before President-elect Joe Biden takes the oath of office — the U.S. Supreme Court will hear arguments in a climate change accountability lawsuit brought by Baltimore, Maryland, against almost two dozen fossil fuel corporations.

Like over a dozen other climate lawsuits, Baltimore’s case seeks to hold major oil and gas companies including Chevron and ExxonMobil accountable for fueling the climate crisis through the extraction and sale of their products and for spreading climate disinformation and downplaying the dangers of fossil fuels to the public and shareholders in order to boost corporate profits.

And similar to other cases brought at the municipal or state level, Baltimore’s lawsuit demands that oil majors help pay for things such as seawalls to better protect the city from the impacts of climate change like more dramatic flooding. Proving the alleged corporate deception around the reality and severity of climate change is at the heart of the lawsuits lodged by communities like Baltimore which are facing enormous costs and damages from the unfolding climate crisis.
Seeking help from the fossil fuel companies to pay for these sorts of climate adaptation efforts, however, can likely only be done by keeping the case at the local level rather than trying it in higher federal courts.

This is why fossil fuel companies and their allies are currently waging a procedural battle to punt these cases from state to federal court. The upcoming hearing in the Supreme Court — which has dismissed climate lawsuits in the past — could determine whether or not the Baltimore lawsuit can remain at the state level. A ruling in favor of the fossil fuel industry will at the very least delay Baltimore’s case and similar climate cases from advancing in state court, and could derail these cases altogether if the Supreme Court determines they must be brought in federal, rather than state, courts.

Big Oil Allies

In a series of legal briefs recently filed with the Supreme Court, several trade and lobby groups, and more than a dozen government bodies, are backing Big Oil’s argument that the case should only be heard in federal court.

This includes the American Petroleum Institute, the National Association of Manufacturers (NAM), and the U.S. Chamber of Commerce. (The Chamber of Commerce and NAM, whose members include fossil fuel companies, both regularly intervene on the industry’s behalf in court.)

Two conservative law organizations — the Atlantic Legal Foundation and the Washington Legal Foundation — also filed briefs, along with an organization of defense lawyers called DRI – Voice of the Defense Bar and Energy Policy Advocates, a shadowy initiative that files public records requests on behalf of fossil fuel interests.

On top of that, two retired military officers filed briefs as well as the U.S. federal government and 13 politically conservative states, including Alaska, Louisiana, and Texas. Under Trump, the Justice Department has regularly intervened on industry’s behalf in court cases — and its recent brief in the Baltimore case echoes arguments made by the fossil fuel industry.

Alyssa Johl, legal director with the Center for Climate Integrity, an initiative that supports holding polluters accountable for climate harms, described the oil companies’ Supreme Court plea as a “bait and switch.”

“Big Oil and their allies are asking the justices to bypass the narrow issue before them and instead issue a sweeping decision that would send all related climate damages cases to federal court,” she said. “Since the oil defendants have repeatedly failed to win that argument in lower courts, this really feels like a Hail Mary pass to escape accountability.”

State vs. Federal Tug of War

There is virtually no reference made in any of the supporting briefs to the allegations of fraud and deception centering on the companies’ history of climate science denial. Instead, they all focus on a long procedural tug-of-war between state and federal courts — a fight the companies have now taken to the Supreme Court.

In early October, the Court agreed to wade into a very nuanced procedural question in the Baltimore case — meaning its decision in the upcoming hearing will not be about the fossil fuel companies’ accountability.

At issue is something called “remand orders” — when a federal court decides to send a lawsuit back to state courts. Specifically, the question is about the appeal of these orders and whether appeals courts are allowed to review the whole order, including multiple arguments for federal jurisdiction, or instead limit their review to two narrow grounds for hearing the case in federal court.

Remand orders would typically not be subject to review in appeals courts, but Congress carved out two exceptions for cases involving civil rights issues or parties acting under the direction of federal officers. Fossil fuel companies are challenging rulings that send climate liability lawsuits back to state courts under the federal officer exception, and the companies want appeals courts to consider their entire arguments (not just the federal officer exception) for transferring the cases to federal courts.

In March, the Fourth Circuit Court of Appeals ruled that its review of Baltimore’s climate case should be strictly limited to the companies’ claim made in its appeal that petroleum firms “acted under” federal officers through contracts with the federal government to extract oil and gas from public lands and waters. The court rejected this claim, thereby tossing the case back to the state court.

Three other federal appeals courts that have reviewed remand orders in similar climate cases have also issued the same rulings which limit the scope of the appeal. These decisions mean the oil companies have so far been losing their battle to push climate liability cases to federal courts.

But now, the companies and their backers are looking to the Supreme Court to salvage their federal court strategy.

“The oil companies have tried to expand the scope of [arguments] to request that the Court rule that the cases are governed by federal common law and therefore should be dismissed outright,” Vermont Law School Professor Patrick Parenteau (and this writer’s former law professor) told DeSmog.

In 2011, a Supreme Court ruling found that legal claims concerning global warming and greenhouse gas emissions could not be brought under federal common law — the unwritten body of law established by legal precedent. That’s because the U.S. Environmental Protection Agency already has the authority to regulate climate pollution under the Clean Air Act.

As the coalition of more than a dozen states, many heavily reliant on the oil and gas industry, state in their brief: “Baltimore’s public-nuisance claim necessarily arises under federal common law.” The states reference other climate lawsuits brought by local governments against the fossil fuel industry, claiming “all this and similar lawsuits have to offer is regulatory chaos.”

What Else Is Big Oil Saying?

This industry push is a concerted effort to squash climate liability lawsuits, said Parenteau.

Part of the strategy, as many of the briefs illustrate, is to argue that climate lawsuits like Baltimore’s are actually about regulating the energy industry — and that fossil fuels are essential to society.

The National Association of Manufacturers, for example, repeats the idea that Baltimore’s climate case is an attempt to regulate industry, rather than hold it accountable for alleged misdeeds of the past. “This particular lawsuit seeks to use state tort law to regulate the national production and sale of energy products that have been essential to modern life since the industrial revolution,” NAM writes in its legal brief.

This is the same big industry association, however, that hosted the Global Climate Coalition, an influential lobby group in the 1990s that engaged in disinformation campaigns to undermine climate science and block climate policies — exactly the sort of anti-environmental actions that Baltimore and other communities are targeting with their legal claims.

As Karen Sokol, a law professor at Loyola University School of Law who is closely following these climate lawsuits, told DeSmog, the business strategy of fossil fuel producers is to pollute the information landscape and keep society hooked on their products.

“That strategy, which I call a ‘disinformation plus path dependence’ strategy, consists of: (1) the pervasive dissemination of disinformation to encourage non-rational decision-making about fossil fuel product use, and (2) the subsequent deprivation of free choice on the part of users through the creation of fossil-fuel dependent society, even if the disinformation problem is corrected,” she explained via email.

In other words, the argument made by the fossil fuel companies and their allies in court that fossil fuels are “essential” is disingenuous because it was the industry itself that helped create such a dependence on its products.

Nevertheless, NAM is telling the Supreme Court that petroleum products are “essential to modern life.”

The American Petroleum Institute and two retired military officers echo this, saying oil is “essential” to the U.S. military.

“For more than a century, petroleum products have been essential for fueling the United States military … and it remains crucial today to advance the Nation’s paramount interest in national defense,” Richard B. Myers and Michael G. Mullen, both former Chairmen of the Joint Chiefs of Staff, argue in their legal brief submitted to the Supreme Court. What their brief does not acknowledge is the warning from former and current military officials that the fossil fuel-driven climate crisis is a grave threat to national security.

Escaping Accountability

Experts in climate accountability and climate law say this strategy to try and push these lawsuits to the federal court system is a desperate attempt to avoid facing evidence of the industry’s alleged deception.

“Big Oil and its supporters are attempting to distract from the key facts of its sordid history: that the industry knew its products would cause catastrophic damage, concealed its knowledge, deceived the public, and now the bill has come due,” said Dr. Benjamin Franta, a climate accountability researcher at Stanford University and scholar with the Climate Social Science Network.

Further damning evidence of the extent of the companies’ knowledge of climate impacts, and their efforts to publicly dispute this knowledge, could be revealed through the discovery process and presented at trial. The companies are trying to avoid facing this evidence by keeping the cases from proceeding in state courts under state law, as Sokol explained.

“The strength of the evidence that the plaintiffs already have in their complaints, coupled with the further evidence that will undoubtedly be unveiled through discovery and trial, makes these state [tort/law] claims quite powerful,” she said.

Delay Tactics

Depending on its decision, the Supreme Court could help the oil companies evade potential accountability for climate harms in state courts, or at least aid them in delaying having to litigate in those courts. Such a delay could increase the burden on federal courts by dragging out the appeals process, potentially creating a “substantial logjam of cases in federal courts,” as UCLA environmental law fellow Benjamin Harris explained in an article published October 12.

“A ruling in favor of the oil companies could force plaintiffs in a wide variety of cases bringing claims under state law — especially environmental plaintiffs — to undergo lengthy federal appellate review before even obtaining discovery in state court,” Harris wrote.

Parenteau agreed this kind of ruling “would show a lack of respect for state courts and could increase the workload of the lower courts.”

And given that the Supreme Court now has three Trump appointed justices and a clear conservative majority, the Court could plausibly derail climate accountability litigation altogether by ruling that Baltimore’s case, and others like it, belong in federal, not state, courts.

“It’s possible the newly configured Court could choose to go beyond the technical civil procedure question presented and drive a stake through the heart of all these cases,” Parenteau said.

The more likely outcome, he added, is a decision on the technical question — specifically that appeals courts must consider all arguments for federal jurisdiction when reviewing decisions to remand or send cases back to state courts. That ruling would send Baltimore’s case back to the Fourth Circuit Court of Appeals; it would also likely re-open the federal appeals process for several other climate cases that the appeals courts had already determined belong in state courts.

“That will not kill the cases, but it will delay them for a year or more,” Parenteau said.

Whatever the Supreme Court decides, the oil companies may not enjoy the federal backing that they have come to expect under Trump for much longer. There is a chance that the new Biden administration may soon be switching sides in climate change court cases.

Biden has pledged to direct his Justice Department to support “ongoing plaintiff-driven climate litigation against polluters.”