Appeals Court Repeatedly Questions Big Oil Lawyer on Allegations of Deception During Hearing in Rhode Island Climate Case

Chevron attorney Ted Boutrous. Credit: Getty Images

A climate change lawsuit brought by the state of Rhode Island against major fossil fuel producers like Chevron and Shell had a court hearing on Friday, September 11 where lawyers for each side presented diverging characterizations of the case, and the court appeared skeptical of the fossil fuel industry’s interpretation of the state’s claims.

The hearing was before the First Circuit Court of Appeals on the issue of jurisdiction, or whether the case belongs in state court or federal court. Chevron and other oil company defendants are fighting to move Rhode Island’s case and similar climate liability cases to federal courts, where the companies see an easier path to dismissal. The municipalities and states suing the fossil fuel industry over climate impacts and costs want the cases in state courts. Three federal appeals courts have already decided to uphold federal district court orders sending cases brought by communities in California, Colorado, and the city of Baltimore back to state courts where the cases were originally filed. Federal District Judge William E. Smith ordered Rhode Island’s case back to state court on July 22, 2019, but the fossil fuel companies are appealing that order.

Like other communities across the country that have filed these climate lawsuits, Rhode Island alleges that major fossil fuel producers engaged in campaigns of deception to undermine climate science and downplay the climate risks of fossil fuel products.
 
As attorney Vic Sher of the law firm Sher Edling, which is representing Rhode Island and other communities suing the fossil fuel industry over climate harms, said during the hearing, Rhode Island “has asserted these well established state law claims based on a multi-decadal campaign of deception and lies, attacks on science and scientists.”
 
“There is not a fair reading of the complaint that does not focus on the disinformation campaign and the misrepresentations that were made,” Sher said in his opening statement.
 
Attorney Ted Boutrous, who represents Chevron and argued on behalf of all industry defendants, tried to downplay the allegations of deception when questioned repeatedly on that specific matter by the court.  
 
“Rhode Island’s allegations focus on the misrepresentations and the coverup and how that has specifically caused harm to the citizens of Rhode Island,” Judge O. Rogeriee Thompson posed to Boutrous.
 
“That’s one piece of it your honor…it’s one piece of it,” Boutrous replied. He argued that the case is really about the production of fossil fuels and subsequent emissions causing global warming. “It’s all about the emissions,” he said at one point in his argument.  
 
But Judge Thompson and Judge Juan Torruella pressed the misrepresentation issue, saying that it seems the industry’s alleged lies are at the heart of the case.
 
“I don’t think there’s any way to read this complaint other than it seeks to punish oil and gas production,” Boutrous said, once again deflecting to the production of oil and gas.
 
“[Rhode Island is] not asking you to stop production. They’re asking you to stop misinformation,” Judge Torruella said.
 
The court did not make any immediate ruling but said it would take the arguments under advisement. If the court rules against the fossil fuel defendants and decides the case belongs in state court, it would be the fourth appeals court to issue such a ruling in these climate cases this year. If the cases proceed in state court they could reach the discovery phase and trial, which the companies appear determined to avoid.

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