Congressional Probe of Big Oil’s Climate Disinformation Could Boost Climate Accountability Litigation Already Underway
Democrats on the U.S. House Committee on Oversight and Reform have wrapped up a historic investigation into Big Oil’s obstruction and obfuscation of climate and the clean energy transition and are handing the torch off for others to continue to the probe and to press for accountability. The investigation has uncovered extensive industry records such as internal emails that are likely to be highly relevant to the batch of climate lawsuits currently pending against major oil and gas companies such as Shell, Chevron, BP, and ExxonMobil.
On December 9, 2022 the Committee released hundreds of pages of documents – part of the internal industry record gathered through subpoenas - and a 31-page memo summarizing some of the key findings. This latest release follows the Committee’s revelation in September of documents and initial findings that Committee leaders say show the industry is misleading the public. Overall the documents offer evidence and indications that the oil and gas industry is intent on continuing and expanding its extractive, climate-damaging business despite claims of becoming cleaner and pursuing credible climate action. Such claims, industry critics contend, amount to greenwashing, which some of the lawsuits point to in alleging that the industry’s deceptive conduct is ongoing.
“Even though Big Oil CEOs admitted to my Committee that their products are causing a climate emergency, today’s documents reveal that the industry has no real plans to clean up its act and is barreling ahead with plans to pump more dirty fuels for decades to come,” Committee Chairwoman Carolyn Maloney said in a statement announcing the latest release of industry documents.
The nearly two-year investigation honed in on Big Oil’s role in disseminating climate disinformation and delaying or blocking meaningful climate action, and the gap between the industry’s public rhetoric and its internal discussion on climate and the energy business. While previous investigations by journalists, academics and others have revealed the industry’s historical conduct of undermining climate science and misleading the public, including through funding climate denial messaging, the House Oversight probe illuminates the industry’s ongoing efforts to deceive and engage in disinformation, particularly through hollow ‘net zero’ pledges and the promotion of technologies and alternative fuels like carbon capture and hydrogen or ‘renewable’ natural gas that preserve the role of fossil fuels under the guise of climate solutions.
“Internal emails and messaging guidance show that Big Oil’s climate pledges rely on unproven technology, accounting gimmicks and misleading language to hide the reality,” Rep. Ro Khanna, Chair of the Oversight Committee’s Subcommittee on the Environment, said in a September statement. He is calling for further action to hold the industry accountable and told NBC News that the documents obtained by the Committee “will be handed over to those with more resources who can act on the information.”
There is speculation that Khanna could be referring to the Department of Justice. DOJ could open its own investigation into Big Oil, and the Department has investigatory tools that even Congress lacks. Given that Big Oil and its trade associations refused to fully cooperate with the Committee and its subpoenas, and heavily redacted many of the documents that were handed over, DOJ could play a key role in breaking through the industry’s obstruction.
“It’s time for the Department of Justice to engage and initiate actions to hold these bad faith polluters accountable for the catastrophic damage they have caused and the massive fraud they’ve perpetrated on the American people,” said Richard Wiles, president of the Center for Climate Integrity, an advocacy group focused on climate accountability.
In the meantime, litigation is already underway seeking to hold fossil fuel entities accountable for climate-related harms and alleged fraudulent behavior, with around two dozen states and municipalities currently suing the industry in courts across the country. Lawyers for the government plaintiffs will surely be pouring over the Committee’s documents and potentially using them to make their case.
“This new batch of compromising evidence will help communities seeking justice through the courts and ensure that fossil fuel companies pay for the outsize role they have played in climate change and the suffering of communities,” Delta Merner, a lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists, said in a statement.
The latest youth climate lawsuit challenging the government’s response to the climate crisis has been filed in Sweden. On Friday, November 25 an association called Aurora announced the lawsuit against the Swedish state. The youth-led association, representing over 600 young people born between 1996 and 2015, filed its case as a class-action on behalf of all Swedish youth. Prominent Swedish climate activist Greta Thunberg is among the plaintiffs.
“Today on Black Friday is the perfect day to sue the state over its insufficient climate policies. So that’s what we did. See you in court!” Thunberg wrote on Twitter.
The lawsuit follows several letters that the youth campaigners sent to government officials, requesting the government investigate and calculate its “fair share” of reducing GHG emissions in line with limiting warming to 1.5°C and then take all necessary measures to achieve its equitable share of emissions reductions. The campaigners contend that Sweden is failing to adequately address emissions and prevent dangerous warming, endangering the fundamental human rights of young people as climate impacts worsen over time, during the expected lifetime of today’s youth.
The youth plaintiffs base their legal claims on alleged violations under the European Convention on Human Rights, including rights to life, private and family life, and non-discrimination (Articles 2, 8, and 14, respectively), and the right to property (Article 1). According to a summary of the case, plaintiffs “ask the court to order the state to implement its fair share of GHG emissions reductions to keep global warming below 1.5°C, by adopting sufficient and adequate procedural and substantive measures to ensure that emissions are continuously reduced and that GHG are absorbed through natural carbon sinks, in order to limit the risk of negative impacts of climate change on them.”
According to a 23-year-old spokesperson for the youth plaintiffs, the lawsuit is part of a larger movement of turning to the courts in the absence of urgent policy responses to the climate emergency.
“People in power don’t seem to realize that large-scale and immediate action is required to prevent it from worsening further,” Ida Edling told Courthouse News. “The global movement of climate litigation has shown that lack of sufficient climate action is irresponsible and unimaginably dangerous and illegal.”
Finland is facing a legal challenge from environmental groups alleging the government is in breach of its obligations under a new climate law. According to Greenpeace, it is the first climate litigation to arise in the Nordic country.
Greenpeace Norden and the Finnish Association for Nature Conservation filed an administrative appeal in late November arguing that the state had failed to take or consider additional measures to ensure it would meet its emissions reduction targets, which would be necessary given the collapse of Finland’s carbon sinks. Heavy logging and lack of forest protections has turned the land sector from a carbon sink or absorber of CO2 to a source of carbon emissions, threatening the government’s ambition to achieve carbon neutrality by 2035.
That goal is enshrined in Finland’s new climate law, the Climate Change Act. Under this law, Finland must adopt plans or policies to reach its climate commitments and do annual assessments to report on progress The law sets emissions reduction targets for 2030, 2040, and 2050 and includes a goal of strengthening carbon sinks. As explained in a Greenpeace press release: “The collapse of Finland’s carbon sinks in 2021 has created a situation where the government’s climate policy plans are insufficient for meeting the Climate Act’s targets.”
Finland’s annual report for 2022, the lawsuit argues, failed to take into account additional measures needed to address the loss of carbon sinks. This violates the state’s obligations under the Climate Change Act, plaintiffs say.
“Finland has science-based climate goals and a climate law that is meant to ensure that the goals are reached. Finns can be proud of that. But now the government has neglected its legal duty to assess the adequacy of action and, as needed, to decide on additional measures, sufficient to meet the goals,” said Greenpeace Norden’s Senior Climate Policy Advisor Kaisa Kosonen. This is why it’s our duty as NGOs to seek for a court ruling on this.”
The lawsuit was filed with Finland’s Supreme Administrative Court.
Story originally published in DeSmog
Nearly 25 years ago, oil major Shell predicted in an internal 1998 report that a class-action lawsuit would be brought against fossil fuel companies following “a series of violent storms.” That prediction is finally coming true: A group of Puerto Rican communities, which were ravaged by Hurricanes Irma and Maria in 2017, are suing Shell and other fossil fuel producers in a first-of-its-kind, class action climate liability lawsuit.
The groundbreaking case — filed November 22 in the U.S. District Court for the District of Puerto Rico — is the first climate-related class action lawsuit in the United States filed against the fossil fuel industry to target the industry with federal charges of racketeering. It alleges that the fossil fuel defendants engaged in a coordinated, multi-front effort to promote climate denial and defraud consumers by concealing the climate consequences of fossil fuel products in order to inflate profits.
Sixteen Puerto Rican municipalities are suing as a class or representatives on behalf of the more than 60 municipalities on the island that all experienced devastating losses from the 2017 hurricanes. The case demands that fossil fuel companies pay for damages associated with catastrophic storms, beginning with the 2017 hurricanes, and their lingering impacts, arguing that these disasters are worsened by climate change.
The more than 200-page complaint alleges that fossil fuel companies’ products and deceptive conduct greatly accelerated global warming, including warming oceans. Climate models predict that as oceans warm, hurricanes will become more intense, leading to more turbocharged storms like Maria and Irma.
The 2017 Atlantic hurricane season, in which both Irma and Maria hit, saw six major hurricanes and resulted in nearly $300 billion of damage. In Puerto Rico, Maria alone caused almost 3,000 fatalities and more than $120 billion in damages, destroying the island’s power grid and devastating other critical infrastructure like roads and health care facilities. This September, almost five years to the day after Maria hit, Hurricane Fiona slammed Puerto Rico, again impacting infrastructure and compounding damages from the 2017 storms. With mounting climate-related disaster costs, the question becomes, how can Puerto Rico pay for this?
Through this new litigation, the island’s municipalities are trying to compel some of the world’s largest oil, gas, and coal companies to pay for the consequences of the climate crisis their products have fueled. As explained in a press release announcing the lawsuit, the companies’ “failure to disclose the truth about their products had disastrous effects for Puerto Rico, which was defenseless against the historically strong hurricanes that hit the island in 2017.” The Global Climate Risk Index report from 2020 noted that between 1999 and 2018, Puerto Rico was the country most affected by climate change, due in part to “exceptionally devastating” storms.
Companies named as defendants in the lawsuit include BP, Chevron, ConocoPhillips, ExxonMobil, Shell, Occidental Petroleum, Motiva Enterprises, BHP, Arch Resources, Peabody Energy, and Rio Tinto. All are among the 90 corporate entities, or “carbon majors,” that research indicates are responsible for nearly two-thirds of carbon emissions since the Industrial Revolution; the companies listed above together account for about 40 percent of industrial emissions from 1965 to 2017, according to the complaint.
The complaint, supported by excerpts from industry communications, delves into how oil companies knew over half a century ago about the potential catastrophic impacts of a warming planet, and that this warming resulted from the use of their products. It also details how they deliberately acted to conceal what they knew about climate impacts and to publicly disseminate disinformation, fund climate denial, and obstruct policy responses and attempts to shift to alternative energy sources.
“Instead of acting to limit the potential greenhouse gas emissions, they mobilized with the coal and fossil fuel dependent industries to manufacture and spread propaganda and deception about climate science, contrary to their own internal scientific conclusions, in order to ensure unabated emissions and the sale of their products to consumers worldwide and in Puerto Rico,” the complaint contends.
As part of their disinformation and deception campaigns, fossil fuel companies funded various “free market” think tanks and front groups to amplify their misleading messaging. The lawsuit calls out a handful of these organizations, including the Competitive Enterprise Institute (CEI), which received more than $2 million from Exxon, the Heritage Foundation, the Heartland Institute, Frontiers of Freedom, and Committee for a Constructive Tomorrow (CFACT), which took funding from Exxon, Chevron, and Peabody.
Another group that the complaint alleges was central to the deception campaign was the Global Climate Coalition, an industry lobby organization formed in 1989 by companies and trade associations in carbon-intensive sectors such as fossil fuels, chemicals, automobiles, and electric utilities, to undermine climate science and thwart climate policies. The complaint details the GCC’s obstructionist role, which included the formation of a communications task force that in 1998 created the infamous “victory will be achieved when” internal memo that outlined the coalition’s objective to manipulate the public’s understanding of climate science.
Such conduct demonstrates an orchestrated attempt to obfuscate and obstruct, and this misleading behavior is ongoing, according to legal counsel for the municipalities.
“This is a laid out, multifaceted plan that was decades in the making that is still being perpetuated to this day,” Melissa Sims, an attorney with the law firm Milberg Coleman Bryson Phillips Grossman PLLC, which is representing the Puerto Rican communities, told DeSmog.
A “New Front in the Climate Liability War”
The lawsuit brings more than a dozen legal claims under federal and Puerto Rican law, such as consumer fraud, violation of Puerto Rican consumer protection rules, and violation of federal antitrust law. Notably, it also alleges violations under the Racketeer Influenced and Corrupt Organizations (RICO) Act, a federal statute designed to fight organized crime or other corrupt conduct.
RICO has been successfully used to hold the tobacco industry accountable for lying about the health hazards of their products, and has been applied in litigation against opioid and auto manufactures. Until now, it had yet to be asserted in a climate liability lawsuit, although several Democratic senators have previously called for a federal probe of Big Oil that could result in potential racketeering litigation.
Patrick Parenteau, emeritus professor of law and senior fellow for climate policy in the Environmental Law Center at Vermont Law and Graduate School, said he had been expecting a RICO claim to arise in climate liability litigation.
“I think this opens a whole new front in the climate liability war,” he told DeSmog via email. “It sends yet another signal to the financial markets that fossil is a bad investment.”
Parenteau acknowledged that a racketeering claim adds extra challenges, since plaintiffs will need to prove collusion between the defendants. “But it ups the ante in terms of potential remedies and damages,” he explained.
Additionally, Parenteau explained that since the lawsuit was filed in federal court, it can avoid the venue disputes that have delayed the other climate liability lawsuits targeting fossil fuel companies.
Representatives for several of the oil company defendants said in emailed statements that this litigation is a “baseless distraction” and that climate solutions must be reached through “smart policy from governments” rather than courts.
“Addressing a challenge as big as climate change requires a truly collaborative, society-wide approach. We do not believe the courtroom is the right venue to address climate change,” Shell spokesperson Anna Arata said in a statement.
A lawyer for Chevron also described the climate crisis as a societal challenge resulting from “worldwide conduct” of consumers, including Puerto Ricans.
“Residents and public officials in Puerto Rico rely every day on oil and gas to live and work on the island, power their homes, become a tourist destination, and grow their economy. This lawsuit is one in a series of suits that attempt to punish a select group of energy companies for a challenge that is the result of worldwide conduct stretching back to the beginning of the Industrial Revolution,” said Theodore J. Boutrous, Jr., of Gibson, Dunn and Crutcher, counsel for Chevron Corporation.
A 2021 peer-reviewed study by Harvard researchers Naomi Oreskes and Geoffrey Supran, however, suggests that these kinds of statements are part of a misleading narrative framing that downplays the gravity of the climate crisis, normalizes dependency on oil and gas, and focuses blame on individual consumers. According to the study, which examined communications from ExxonMobil, “These patterns mimic the tobacco industry’s documented strategy of shifting responsibility away from corporations—which knowingly sold a deadly product while denying its harms—and onto consumers.”
ExxonMobil did not respond to a request for comment on the new lawsuit from Puerto Rico.
Boutrous added: “Chevron believes the claims alleged are legally and factually meritless, and will demonstrate that in court.”
But if the federal racketeering litigation that determined that tobacco companies had committed fraud on a massive scale is any indication, the fossil fuel companies could be in real legal peril with this new RICO litigation.
“Tobacco opened the door to using RICO, and let’s face it—RICO was enacted to fight organized crime,” said Sharon Eubanks, an attorney who previously led the U.S. Justice Department’s successful RICO litigation against Big Tobacco in United States v. Philip Morris USA, et al. “That seems to be what we have here with Big Oil as well.”
Climate Scientists and Experts Take Legal Action Against EPA to Compel Climate Action Under Chemical Statute
A group of scientific, medical and policy experts – including renowned climate scientist Dr. James Hansen – is suing the U.S. Environmental Protection Agency in an attempt to compel the agency to address greenhouse gas (GHG) emissions under a federal statute designed to control hazardous chemical substances.
The climate experts filed their lawsuit on November 12, 2022 in federal court in Eugene, Oregon. The case follows the EPA’s rejection of a petition submitted by the experts explaining the grounds for initiating a rulemaking under the Toxic Substances Control Act to phase out anthropogenic GHGs that are driving the rapidly escalating climate crisis. Plaintiffs demand that EPA use its authority under the TSCA to develop regulations to limit and eventually eliminate planet-warming emissions, the majority of which stem from producing and consuming fossil fuels. According to the complaint: “Without regulation under TSCA, the U.S. Government will not eliminate the unreasonable risk to health and the environment posed by greenhouse gas emissions.”
Previously the EPA has relied on the Clean Air Act to devise regulations addressing climate pollution, such as setting controls for vehicle tailpipe emissions. The Toxic Substances Control Act has not been utilized for climate purposes, although EPA did impose a general ban on chlorofluorocarbons (CFCs) in aerosols – chemicals that deplete the ozone layer and act as GHGs - in 1978. The TSCA requires EPA take action to control any chemical substance or mixture determined to present a risk of injuring or causing widespread harm to health or the environment.
Plaintiffs argue that GHGs (beyond just CFCs) qualify under the statute as dangerous substances that warrant agency action to control.
“TSCA is a chemical safety act. Right now, greenhouse gases are the most unsafe chemicals on the planet. TSCA is designed to control chemical risk other authorities can’t,” Donn Viviani, plaintiff and former EPA scientist, said in a statement. “I worked at EPA for over 30 years, and it is hard for me to understand why the Agency would need a Petition to regulate these unsafe chemicals,” he continued. “Indeed, it is virtually unbelievable to me that they denied the Petition and require a lawsuit to take action to contend seriously with the worst risk that mankind has ever faced.”
The climate experts submitted their petition to EPA on June 16, 2022. Several months later in September, EPA denied the petition, claiming the request was not specific enough given the enormous scope of the climate crisis. EPA also said the government is taking steps to address climate change. Efforts already underway and future measures, the agency argued, would be sufficient to meet the U.S.’s climate targets.
But Dan Galpern, the attorney representing the plaintiffs and executive director of the organization Climate Protection Restoration Initiative, said current climate actions and spending, such as those included in recent legislation (the Infrastructure Investment and Jobs Act and the Inflation Reduction Act), “remain hopelessly inadequate.”
“The Agency’s reasonable use of TSCA to restrict GHG pollution really would shape an enduring legacy for Biden,” said Dr. Hansen. “The future of young people is at stake, and it is well past time we got serious.”
Story originally published in DeSmog
In recent years, communities across the United States increasingly have turned to the courts to hold oil and gas companies accountable for alleged fraud — which has worsened the climate crisis — and now those lawsuits are inching towards trial. Despite dogged attempts from industry lawyers to force the litigation into federal courts, where they see an easier path to dismissal, they continue to strike out as judges from California to Connecticut rule that state courts are the appropriate venues for these climate accountability lawsuits.
The latest addition to the fossil fuel industry’s long procedural losing streak came on November 12 when a federal district judge decided that the District of Columbia’s climate liability lawsuit belongs in the local court, where it was originally filed in June 2020. As with other climate liability lawsuits, lawyers for the oil and gas companies in the District of Columbia case devised a multitude of arguments claiming that only federal courts have the jurisdiction or authority to handle such lawsuits. But federal courts have not been buying these legal theories.
“Defendants raise seven theories for the Court’s subject-matter jurisdiction. Each, they say, is an independent ground for removal. None is,” Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia wrote in his recent opinion. He joins twelve other federal district judges and five appeals courts in dismissing all of the fossil fuel companies’ arguments for federal jurisdiction. Several of the appeals courts have even ruled twice to affirm that state courts are the right venue for these cases.
The District of Columbia’s case is among two dozen lawsuits filed by cities, counties, and states against the fossil fuel industry over its role in attacking climate science and spreading disinformation in order to stave off climate action and protect profits. A handful of coastal California communities brought the first of these cases in 2017. Since then, the lawsuits have been bogged down in procedural wrangling.
Local and state governments are making claims under local and state laws, invoking issues such as product liability – used to hold manufacturers responsible for selling a defective or harmful product- and consumer protection – designed to protect against misleading marketing and fraud — and have filed their complaints in state courts. Fossil fuel companies are pushing the cases to federal courts, fighting tooth and nail to avoid litigating in state courts, where they could face discovery and trial.
“Chevron respectfully disagrees with the district court’s decision remanding this climate change action to the District of Columbia municipal court. This case belongs in federal court because climate change is a global phenomenon that requires a coordinated federal policy response, not a patchwork of lawsuits brought in municipal and state courts,” Theodore J. Boutrous, Jr. of Gibson, Dunn and Crutcher, and counsel for Chevron Corporation, said in an emailed statement.
“The industry’s efforts to keep the cases from proceeding in state court for almost six years now indicates that, contrary to its public messaging otherwise, it thinks there’s a reason to be worried,” Karen Sokol, a law professor at Loyola University New Orleans College of Law, told DeSmog via email.
One advocate for polluter accountability suggested that these procedural maneuvers represent the fossil fuel industry’s strategic bid for swift dismissal of the cases through federal courts.
“Once again, the courts have seen through Big Oil’s attempts to mischaracterize these cases, and now the people of D.C. are one step closer to having their day in court,” Alyssa Johl, vice president of legal at the Center for Climate Integrity – which campaigns for holding climate polluters accountable — said in an emailed statement.
The District of Columbia case, brought by Attorney General Karl Racine two years ago, names oil majors BP, Chevron, ExxonMobil, and Shell as defendants. It alleges they misled District consumers around the climate consequences of their products and continue to mislead through deceptive advertising and greenwashing. The lawsuit contends that this behavior violates the District’s Consumer Protection Procedures Act.
“Independently and through coordinated campaigns and industry front groups, Defendants have deceived D.C. consumers about how Defendants’ fossil fuel products warm the planet and disrupt the climate in a quest to drive profits through increased sales of gas and other fossil fuel products. Defendants continue to mislead D.C. consumers to this day,” the complaint states.
The District of Columbia and others bringing these climate liability lawsuits say their claims are based on the deceptive conduct of the fossil fuel companies, not on the emissions or production of fossil fuels. The companies, however, have tried to paint the cases as attacking production.
“We do not believe the courtroom is the right venue to address climate change, but that smart policy from government, supported by action from all business sectors, including ours, and from civil society, is the appropriate way to reach solutions and drive progress,” said Natalie Gunnell, spokesperson for the Shell Group, which is named in the District of Columbia suit and several similar cases.
However, Judge Kelly and other judges have pushed back against this framing that centers the cases in this way.
“The ‘charged conduct’ here is Defendants’ false advertising – not fossil fuel production en masse,” Judge Kelly noted in his opinion.
Similarly, in a ruling issued this April, an appellate court recognized that Baltimore was suing oil and gas companies not over the production and sale of fossil fuel products, but for mispresenting the climate harms of these products. As the court wrote, “it is the concealment and misrepresentation of the products’ known dangers – and the simultaneous promotion of their unrestrained use – that allegedly drove consumption, and thus greenhouse gas pollution, and thus climate change.”
That Baltimore ruling followed a directive from the U.S. Supreme Court that the Fourth Circuit Court of Appeals and three other appeals courts review all of the arguments for federal jurisdiction from the fossil fuel companies. Each appellate court has since rejected the companies’ additional arguments.
Fossil fuel giants are now returning to the Supreme Court with renewed and additional petitions, hoping the highest court will overrule the lower courts’ decisions about where the climate cases should be tried.
Meanwhile, legal developments continue to frustrate the industry’s attempts to evade accountability. Cases filed by Hawaiian communities and by the state of Massachusetts are proceeding to the discovery phase in state courts, a pre-trial process of gathering evidence, during which internal industry documents could surface and shed new light on the extent of the industry’s deceptive behavior. Last month a federal district judge in California, who had previously tossed cases filed by Oakland and San Francisco, issued an order to send the cases, which were revived by a federal appeals court, back to state court. And New Jersey Attorney General Matthew J. Platkin followed in the footsteps of seven other Democratic state prosecutors in filing a consumer fraud case against ExxonMobil and other oil majors.
A spokesperson for Exxon did not respond to a request for comment. BP America declined to comment.
Judge Kelly’s order to send the District of Columbia’s case back to the lower court is temporarily paused as the oil companies prepare an appeal, as they have every other time a federal judge made a similar ruling.
“Chevron plans to appeal this ruling to the D.C. Circuit Court of Appeals,” Boutrous, Jr. said.
None of these appeals, however, have been successful. Loyola University’s Sokol sees these repeated rejections as further affirmation that local and state governments have the right to try these claims in state courts.
“These cases were filed in state court to hold polluters accountable for climate deception under state law,” she said. “And that’s where courts have unanimously agreed they should proceed.”
LAWYERS FOR YOUNG PEOPLE SUING UTAH OVER FOSSIL FUEL ENERGY POLICY URGE COURT TO GREENLIGHT CASE FOR TRIAL
UPDATE: On November 9, 2022 Judge Faust issued a decision in favor of the state to dismiss the case. According to Our Children's Trust, he cited issues such as redressability (the ability for the dispute to be adequately remedied), the political question doctrine, and substantive due process as grounds for dismissal. Lawyers for the youth plaintiffs say they will appeal the ruling.
A youth-led lawsuit alleging the State of Utah is affirmatively harming its young citizens and shortening their lifespans through energy policy favoring fossil fuels came before a state judge Friday in a hearing that will determine whether the case will proceed towards trial.
The Honorable Robert Faust heard oral arguments in Natalie R. v. State of Utah, a constitutional climate lawsuit brought by seven youth plaintiffs against their state government, and indicated he would rule on the procedural matter within days. The hearing on November 4 at the Third District Courthouse in Salt Lake City focused on the state’s motion to dismiss the case.
Natalie R. v. State of Utah is one of a handful of currently pending climate cases in which young people are suing their state governments for promoting and permitting fossil fuels and thereby contributing to climate harms, which disproportionately burden youths and future generations. The cases claim states are violating their constitutions and seek declaratory relief – a court order stating that the challenged government conduct is unconstitutional. Besides Utah, such cases are currently active in Montana, Hawaii, and Virginia.
The Utah case was filed on March 15, 2022 against the state over its systemic energy policy promoting fossil fuels despite being well aware of the climate dangers of continued use of coal, oil, and gas. According to the complaint, Utah is prioritizing fossil fuel development through official state policy (statutory law), which directly adds more greenhouse gas pollution and fouls the air with other pollutants. “Because of the development and combustion of fossil fuels, Utah has the worst average air quality of any state in the nation and is already experiencing profoundly dangerous climate changes,” the complaint states.
Plaintiffs are seven young people, ages 9 to 18, who all have been directly and adversely impacted by fossil fuel air pollution and climate change consequences like wildfires and droughts. Some have asthma or asthma-like symptoms and all suffer mental distress tied to the worsening air quality and climate crisis, which impairs their access to the outdoors including their enjoyment of outdoor recreational activities.
The poor air quality not only threatens their health, but also endangers their lives and gradually shaves years off their lifespans.
“Because of living in that dangerous air quality, youth in Utah have years taken off of their lifespans, that’s what the data shows,” Andrew Welle, Senior Staff Attorney at the nonprofit Our Children’s Trust and counsel for the youth plaintiffs, told Climate in the Courts. “The government knows this, but they are doubling down on fossil fuels.”
Plaintiffs say the state’s conduct violates their constitutional rights to life and liberty, endangering their health and safety.
Welle said that defendants don’t dispute that Utah’s youth are having their lives shortened and that state conduct contributes to that. But, as he explained, the state argues that courts cannot resolve the matter because energy policy is the domain of the political branches.
“Essentially what the state is arguing is the court can’t decide these constitutional claims,” Welle said. The state mentioned in its closing argument that the legislature would put together a working group to look into the issue.
“Deferring to the legislature to decide a constitutional question with working groups would turn Utah’s Constitution and constitutional law on its head,” Welle said in a statement. “The courthouse doors would be closed to any constitutional claim that the State decided had economic or job implications. That is not the way the law works. The State can’t strip the judiciary of its vital role in interpreting the Utah Constitution and deciding life-threatening constitutional questions.”
Welle told Climate in the Courts that the state is “mischaracterizing the plaintiffs’ claims in a number of ways” and said he feels optimistic that Judge Faust will rule in the youths’ favor. “Judge Faust was engaged, he was taking notes, and I think he was attentive to the arguments we were making,” he said.
“It was exciting to congregate today and watch as our attorney argued for our right to move on to trial,” Lola Moldonado, an 18-year-old plaintiff from Salt Lake City, said. “I hope to see Judge Faust rule in favor of our case so we can present evidence on how our lives have been harmed by the state’s support of the fossil fuel industry.”
New Jersey Attorney General Matthew J. Platkin (center) announced on Oct. 18, 2022 that the state is taking legal action against major oil and gas companies to hold them accountable for climate damages to the state. Also pictured: Department of Environmental Protection Commissioner Shawn LaTourette (left) and Acting Director of the Division of Consumer Affairs Cari Fais (right).
ExxonMobil and several other major oil companies facing a barrage of climate liability lawsuits from U.S. cities, counties and states were served with yet another legal complaint last month, from the state where Exxon originated and remains incorporated.
On Tuesday, October 18 New Jersey became the seventh state thus far to bring a lawsuit against Big Oil for allegedly misleading the public on climate change, disseminating disinformation for decades that effectively staved off policy responses and aggravated the costly impacts of the climate crisis currently unfolding. The case was filed in New Jersey Superior Court in Mercer County, a state court, and names ExxonMobil, BP, ConocoPhillips, Chevron, Shell, and the trade association American Petroleum Institute (API) as defendants.
“Based on their own research, these companies understood decades ago that their products were causing climate change and would have devastating environmental impacts down the road,” said New Jersey Attorney General Matthew J. Platkin. “They went to great lengths to hide the truth and mislead the people of New Jersey, and the world. In short, these companies put their profits ahead of our safety.”
Platkin announced the lawsuit at a press conference from Liberty State Park in Jersey City, a location that was inundated with five feet of water during Superstorm Sandy in late October 2012, nearly 10 years ago to the day. The storm devastated the state, claiming 38 lives and costing $30 billion in property damage. These kinds of catastrophic extreme weather events were foreseen consequences of unabated fossil fuel consumption, yet instead of responsibly acting on this knowledge and disclosing it to the public, the fossil fuel industry downplayed the risks and tried to discredit the science, New Jersey’s complaint contends.
“Defendants not only failed to warn the public but they lied to us for decades to cover it up,” Attorney General Platkin said during the October 18 press conference. “If you lie to the public to protect your profits we will hold you accountable.”
The lawsuit includes claims of failure to warn and negligence as well as trespass, public and private nuisance, impairment of the public trust, and violations of New Jersey’s Consumer Fraud Act. In addition to civil penalties, monetary damages and disgorgement of profits unlawfully acquired, the state is seeking injunctive relief to stop the defendants’ deceptive behavior. Their misleading conduct is ongoing, the state argues, with pervasive greenwashing campaigns portraying their products as “clean” and “lower carbon” and advertisements that misrepresent their commitment to renewable energy.
Cases with similar claims of consumer fraud against oil majors like Exxon are currently pending in a handful of states including Connecticut, Delaware, Massachusetts, Minnesota, Rhode Island, and Vermont as well as the District of Columbia. More than a dozen cities and counties, from Honolulu to Hoboken, have also filed lawsuits to hold fossil fuel companies accountable for their role in driving the climate crisis. Hoboken, which was submerged during Sandy, brought its case in September 2020, and now the state of New Jersey is following suit.
The state will have a long road ahead of it. The other climate liability cases have been mired in procedural battles, some for years, and no case has yet made it to trial aside from a New York case alleging Exxon misled investors, which a judge subsequently dismissed. But New Jersey is not afraid to take on this fight.
In the words of Attorney General Platkin: “To the companies that have been lying to us for decades, I say we’ll see them in court.”
Supreme Court Hears Arguments on Procedural Question in Baltimore's Climate Accountability Case Against Fossil Fuel Companies
A lawsuit brought by the City of Baltimore against nearly two dozen fossil fuel companies seeking to hold them accountable for climate harms stemming from their products reached the Supreme Court bench this week. Although the Court was not hearing the case on its merits or substance, the Justices appeared somewhat skeptical of the procedural arguments offered by the fossil fuel defense.
In oral arguments Tuesday, Jan. 19 in the case BP et al. v. Mayor and City Council of Baltimore, the Supreme Court focused discussion on the highly technical procedural question before it. This question - regarding the scope of appellate review of orders remanding (or sending back) cases from federal to state courts - has important implications for U.S. litigation targeting fossil fuel producers for alleged campaigns of climate denial and deception.
In a strategic move to evade accountability, lawyers representing fossil fuel companies are trying to push climate accountability lawsuits, like the one filed by Baltimore, from state to federal courts where the cases are more likely to be dismissed. At the companies’ request, the Supreme Court is reviewing a decision issued by the Fourth Circuit Court of Appeals last year in Baltimore’s case sending that lawsuit back to state court.
During Tuesday’s hearing, the Supreme Court Justices raised several questions or concerns with the position presented by counsel for the fossil fuel companies. Specifically at issue is the interpretation of a statutory provision (28 USC §1447d) governing appellate review of remand orders – which are orders sending cases back to state courts. Fossil fuel industry lawyers (Petitioners in this case) argue for a broader interpretation allowing review of the entire remand order on appeal, including multiple grounds for federal jurisdiction beyond the specific grounds (civil rights & federal officer) referenced in the statute. Almost all federal circuit courts that have ruled on this question do not support this interpretation.
Concerns raised by the Justices during questioning of counsel for fossil fuel companies, Mr. Kannon Shanmugam, boil down to three main points:
While these issues are highly technical around statutory interpretation and rules of federal civil procedure, they have broader significance for climate accountability litigation against the fossil fuel industry. Should the Supreme Court side with the industry in this matter, it would effectively delay Baltimore’s case and similar climate accountability lawsuits from advancing in state courts, by reopening the federal appellate process to consider industry’s other arguments for federal jurisdiction. But the industry and its allies have urged the Supreme Court to go a step further and find that climate-related lawsuits must arise under federal [common] law, period. Industry lawyers have argued that, under
Supreme Court precedent established by AEP v Connecticut, the Clean Air Act prevents or displaces legal claims brought under federal law relating to interstate greenhouse gas emissions, and thus see establishing federal jurisdiction as key to barring such claims altogether. Subsequent precedent set in Utility Air Group v EPA makes clear that the CAA did not address all sources of greenhouse gases, leaving open the possibility that federal common law climate claims may remain viable against sources of greenhouse not regulated by the Act.
Justice Amy Coney Barrett seemed hesitant that the Court should go this far, suggesting in questioning fossil fuel industry counsel Mr. Shanmugam that “it would be fairly aggressive for us to resolve the federal common law question here.”
This did not deter the fossil fuel counsel from pressing this point about federal law, however. As Mr. Shanmugam argued on Tuesday: “This Court’s precedents dictate the common sense conclusion that federal law governs claims alleging injury caused by worldwide GHG emissions.”
The problem with this argument is that it mischaracterizes the actual claims asserted by Baltimore and other municipalities and states suing the fossil fuel industry over localized climate impacts. These impacts are exacerbated, plaintiffs say, by a decades-long campaign orchestrated by fossil fuel producers to downplay the dangers of their products. The tort or wrongdoing, as attorney Vic Sher, representing Baltimore, pointed out on Tuesday, is “fraud, deception, denial, and disinformation.” Traditionally such conduct falls under the province of state law.
A representative from the City of Baltimore’s law department referenced this deceptive conduct in a statement responding to the Supreme Court hearing. “It is time for the case to start moving,” said Sara Gross, Chief of Affirmative Litigation Division in the Baltimore City Department of Law. “In the two and half years since we filed this case in Maryland state court, defendants have done everything they can to delay and avoid accountability for their decades of deception about climate change while Baltimore continues to suffer the costs and consequences of their actions.”
The U.S. Supreme Court is scheduled to hear oral arguments tomorrow, January 19, in a lawsuit brought by the City of Baltimore against nearly two dozen fossil fuel companies seeking to hold them accountable for alleged deception regarding the climate damages of their products. But the hearing will not focus on the actual allegations or merits of the case; indeed, the companies are hoping the nation’s highest federal court will help them shut the door on this case and related litigation brought by state and local governments facing costly impacts stemming from the climate crisis like worsening floods, catastrophic storms, and deadly heat.
Baltimore – a coastal city with 60 miles of waterfront land threatened by rising seas – sued major energy companies like BP, Chevron, Shell and ExxonMobil in 2018 claiming that these companies’ deceptive business conduct obscured the dangers of fossil fuels and resulted in the dangerous climate consequences unfolding today. Baltimore is demanding the fossil fuel companies help pay for costs of adapting to climate impacts. The city brought its lawsuit under legal claims of nuisance, trespass, failure to warn, and violation of Maryland’s Consumer Protection Act – all state law claims.
The companies, however, say the lawsuit must arise under federal law and have waged a procedural battle trying to challenge the venue, with the aim to have a court decide the case belongs in federal, not state, court because that is where the cases are more likely to be dismissed. It is a strategy they have employed in all other climate accountability cases brought against them. And it initially worked, with two federal district judges tossing out cases brought by New York City and by San Francisco and Oakland (though the NYC case was initially filed in federal court).
Despite these initial wins for the oil companies, a handful of other federal judges have come to the opposite conclusion, deciding these kinds of climate cases about corporate deception belong in state courts. The companies challenged these rulings, and four federal appeals courts (the First Circuit, the Fourth Circuit, the Ninth Circuit and the Tenth Circuit) all rejected the companies’ appeals last year. The Fourth Circuit made its ruling last March in Baltimore’s case, and that is the ruling that the Supreme Court is taking up on a final appeal. Recently the oil industry lawyers lodged petitions requesting that the Supreme Court reverse the rulings from the three other appeals courts as well, but those petitions are on hold pending the Court’s decision in the Baltimore case.
The hearing will start at 11am ET on January 19, 2021 and is available to stream via C-Span.org.
More below on what is at stake, who the players are on the industry side and what they want, and why there is concern about one Supreme Court justice refusing to recuse from the case.
At Stake: The Direction of Climate Litigation Targeting Big Oil
The case before the Justices is strictly about procedure, not the substance of the litigation. A ruling in favor of the oil companies would give them the chance to return to the federal appeals court – in this case the Fourth Circuit – to make a host of other arguments for why the case should be transferred to federal courts and ultimately dismissed. That would effectively delay justice for the government plaintiffs by stalling the litigation from proceeding in state court until the appeal is finally resolved. There is a slight chance the Supreme Court could go even further and rule, as the oil companies have urged, that the Baltimore case and others like it belong in federal courts, period. This would land a possibly fatal blow to climate accountability lawsuits altogether – the ultimate goal of the lawyers representing the fossil fuel defendants.
Basically at stake is the issue of jurisdiction – whether Baltimore’s case and others like it belong in state courts, as multiple appeals courts have now ruled, or whether they must proceed in federal courts where they are likely to be dismissed. The technical question before the Supreme Court is a bit more nuanced and complex, but ultimately the battle at this point is over procedure and the direction or path ahead for climate accountability lawsuits.
As for the other pending petitions to the Supreme Court in similar climate lawsuits, the Court’s decision in Baltimore’s case would likely determine what happens with these cases. Currently the fossil fuel companies are challenging appellate rulings in cases brought by communities in Colorado and in California (Oakland/San Francisco plus a handful of municipalities led by San Mateo County), and by the state of Rhode Island. The challenge is the exact same as their petition in the Baltimore case.
As Vermont Law School law professor Patrick Parenteau explained: “Normally the Court considers each petition separately in the order they are filed but given that all of them share a common issue (scope of appeal of remand) it is likely that whatever decision is reached in Baltimore will apply to the others.”
Who is Backing Big Oil in this Battle, and What Do They Want?
Notably, the hearing will feature not only arguments from the industry lawyers, but also from the Acting Solicitor General of the United States. On the last day of the Trump administration, the outgoing president’s Justice Department will be in court helping to bolster the appeal made by the oil companies. Jeffrey B. Wall as Acting Solicitor General will have 10 minutes to argue in support of companies like Chevron and ExxonMobil.
Other friends or amici who filed briefs supporting Big Oil in this case include commercial trade associations like the American Petroleum Institute and National Association of Manufacturers, the U.S. Chamber of Commerce, conservative legal groups like Atlantic Legal Foundation and Washington Legal Foundation, a shady initiative helmed by lawyers tied to the coal industry called Energy Policy Advocates, a few retired military officers, a group called DRI - Voice of the Defense Bar, and a coalition of politically conservative states led by Indiana.
These backers of Big Oil ultimately want the companies whose products cause climate damages to evade any accountability whatsoever, and they are counting on the Supreme Court to help them with a decision that would delay or derail this litigation.
“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. 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,” Alyssa Johl, legal director with the Center for Climate Integrity, an initiative that supports holding polluters accountable for climate harms, previously said in a statement to DeSmog.
Justice Barrett Has Family Ties to Shell – and Won’t Recuse
Trump’s newest appointed Supreme Court Justice, Amy Coney Barrett, raised alarm among climate scientists, climate journalists and climate advocates during her Senate confirmation hearing in October when she refused to answer basic questions about her understanding of climate science, claiming the issue is a matter of “debate.” This debate over the science is part of the campaign of disinformation created by fossil fuel companies – and this campaign is at the heart of the climate lawsuits like the one brought by Baltimore.
Justice Barrett will be on the bench presiding over Baltimore’s case, but questions have arisen over whether she should participate in this case given that her father worked for Shell Oil as attorney for many years. Shell is one of the defendants in this case, and Barrett has a personal family connection to the company.
Justice Samuel Alito has already recused himself given he owns stock in some of the oil companies. And Justice Barrett had previously recused herself from cases involving Shell when she was a judge on the Seventh Circuit. But curiously she has not done so for the Baltimore case.
Some leading environmental groups have called on Justice Barrett to sit the case out, noting her clear conflict-of-interest.
“It’s well known that Justice Barrett’s father worked for decades as an attorney at Shell Oil, a named defendant in the case. He also played an active role in the American Petroleum Institute, the industry’s main U.S. lobby group, which is funded by numerous defendants in the Baltimore suit and has submitted an amicus curiae brief in support of their petition to the Supreme Court. These deep and long-standing conflicts of interest have led Justice Barrett to recuse herself from cases regarding Shell in the past,” said Kathy Mulvey, accountability campaign director in the Climate and Energy Program at Union of Concerned Scientists.
“Given her father’s long-term work for Shell and the American Petroleum Institute, Justice Barrett should recuse herself from this case and all future cases involving the oil industry,” added Kassie Siegel, director of the Climate Law Institute at the Center for Biological Diversity.
Although President-elect Joe Biden will be sworn in the following day, President Trump’s influence will be on display Tuesday with his Justice Department participating in arguments and his newest Supreme Court Justice participating in the proceeding.