US Government Says Supreme Court Should Not Intervene In Climate Deception Lawsuits Against Oil Companies

The Department of Justice has recommended that the US Supreme Court deny pending petitions filed by oil and gas companies and a group of Republican-led states that seek to stop climate lawsuits targeting the oil industry over alleged deception from advancing towards trial.

In briefs filed this week with the court, Solicitor General Elizabeth Prelogar argued that it would be premature for the justices to intervene at this early stage of the litigation, and that a petition lodged by Alabama and other ‘red’ states is premised upon potential litigation outcomes and impacts that are far too speculative at this time to establish a valid complaint.  

Alabama is leading a 19-state coalition that petitioned the Supreme Court in May with a request to sue the states of California, Connecticut, Minnesota, New Jersey, and Rhode Island, arguing that climate lawsuits filed by those states against oil companies threaten to impede access to affordable energy and risk endangering national security. “As litigation proceeds in their state courts, California and the other states threaten to impose ruinous penalties and coercive remedies that would affect energy and fuel consumption and production across the country,” a May press release from the Alabama Attorney General Office contends.

That argument, however, rests upon a series of contingencies that may or may not materialize, Prelogar explains in her brief that was submitted at the request of the court. She further suggests that the attempt by Alabama and other politically conservative states to sue California and several other liberal states is a move made on behalf of private energy companies rather than citizen constituents, since the companies are the ones directly implicated in climate deception lawsuits.

“Despite being brought ‘in the name[s] of ‘the plaintiff States, this suit is ‘in reality’ one ‘for the benefit of’ the private companies,” the Solicitor General maintains in her brief, adding: “The only interests directly at stake here are therefore the companies’ private interests in avoiding ‘liability and coercive remedies.’”  

In a separate pending petition filed with the court in late February, oil companies that are defendants in a climate deception case brought by Honolulu, Hawaii are challenging a 2023 ruling from Hawaii’s top court rejecting their motions to dismiss and allowing the case to advance towards trial. The companies argue in their petition that federal law bars lawsuits brought under state law pertaining to climate change, since the federal government is authorized to regulate greenhouse gas emissions under the Clean Air Act.

But the Solicitor General says the oil companies are misrepresenting what Honolulu’s case is about. The lawsuit is squarely about alleged deception concerning the impacts of fossil fuels on climate, Prelogar’s brief posits, not about regulating emissions or curtailing oil and gas production. “Indeed, every court to have addressed [Honolulu’s] claims has described them as claims ‘about whether oil and gas companies misled the public about dangers from fossil fuels,’” the brief explains. The Clean Air Act does not address deception or misleading marketing and therefore it is not applicable to this case, Prelogar contends. Other potential federal law barriers including ones under the Constitution are not presently at issue and have not yet been examined by the lower courts, she further argues, making this an inappropriate time for the Supreme Court to intervene on those grounds. And since the litigation is still in the pre-trial stages in Hawaii state courts, it is too early for the nation’s highest court to step in, the brief argues.

Early intervention, particularly from a court that has tended to be sympathetic to big business interests, is precisely what the oil companies are seeking. In their petition they say the stakes at this point “could not be higher” and that the litigation poses “a serious threat” to their industry.

Honolulu’s case is among more than two dozen lawsuits that have been brought over the last seven years by municipal and state governments against large fossil fuel firms. The suits aim to hold the industry accountable for a well-documented, decades-long campaign to sow public doubt about the reality and severity of climate change and its causal link to fossil fuels. Many of the cases, including Honolulu’s, seek to recover millions or even billions of dollars in monetary damages to help pay for the costs of responding to worsening climate impacts like extreme flooding and catastrophic storms. The suits are all in early procedural stages with none having yet made it to trial, though Honolulu’s case (filed in 2020) is one of the furthest along and may be the first to reach trial if the Supreme Court does not intervene. More cases continue to be filed; just last month Maine became the ninth state so far to file a climate deception lawsuit against Big Oil.

Justices should "allow communities to have their day in court"

Climate accountability advocates welcomed the Solicitor General’s briefs backing the legal positions of the governments suing the industry and said the Supreme Court should allow the cases to advance towards trial.

“As the Solicitor General makes clear, there is no legal basis for the Supreme Court to intervene in these cases,” said Alyssa Johl, vice president of legal and general counsel for the Center for Climate Integrity. “The justices should reject these meritless requests and allow communities to have their day in court to hold Big Oil accountable.”

“Honolulu and other communities have already waited years to present their evidence and argue their claims. We applaud the Biden administration’s continued support for these lawsuits and urge the incoming Trump administration to continue following science and clear legal arguments. The Supreme Court should allow these cases to proceed in state courts without further delays,” Kathy Mulvey, director of the climate accountability campaign at the Union of Concerned Scientists, said in a statement.

President-elect Trump has promised to expand fossil fuel drilling and roll back environmental regulations and climate policies, as well as to “stop the wave of frivolous litigation from environmental extremists.” The latter pledge suggests he is supportive of the oil and gas industry’s efforts to quash the 30+ climate cases targeting the industry.

It is now up to the Supreme Court to decide whether to take up the oil companies’ petition in the Honolulu case and the Alabama-led petition.

Patrick Parenteau, emeritus professor or law and senior fellow for climate policy at Vermont Law and Graduate School, said the Alabama petition is nothing more than a “political stunt.” If the court does want to intervene at this stage, he said, it would do so by taking up the Honolulu case.

“If [the justices] take that case, it’s a really bad sign,” Parenteau said. “I don’t think they will, they shouldn’t, but they can do what they want.”

Korey Silverman-Roati, a fellow at the Sabin Center for Climate Change Law at Columbia Law School, agreed that if the court does take this case and decides in favor of the oil companies, it could be the end of these lawsuits. “I think if there is a Supreme Court intervention in the Hawaii case against the plaintiffs, that could really put a chill on this wave of litigation.”