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.
Environmental groups and a coalition of states led by Democratic attorneys general are suing the outgoing Trump administration over a new rule that they say fail to effectively regulate carbon pollution from airplanes. The petitioning groups and states are slamming the new regulations as “insufficient” and “do nothing” standards because the rule essentially require zero emissions reduction, do not apply to in-service aircraft and exempt new in-production airplanes until 2028.
“The aviation industry is a significant source of greenhouse gas emissions, yet the EPA has set standards here that are the equivalent of doing nothing,” California Attorney General Becerra said in a press release. California along with the California Air Resources Board (a state agency) is leading a coalition of 12 states plus the District of Columbia in challenging the airplane standards.
“Many aircraft already meet this standard and even U.S. EPA admits it is unlikely to actually reduce greenhouse gas emissions,” said CARB Executive Officer Richard W. Corey. “These standards are far too weak to accelerate investment in more fuel-efficient aircraft and engines, and they lag existing aircraft technologies by more than a decade. The projected growth of aviation GHG emissions requires standards that are informed by science and robust analysis which unfortunately are principles the current administration continues to ignore.”
The Environmental Protection Agency (EPA) finalized the aviation standards in late December 2020, ten years after environmental organizations initially sued the agency to force it to regulate climate pollution from airplanes. EPA issued an endangerment finding for aircraft under the Clean Air Act in 2016, initiating the rulemaking process that culminated in the first-ever greenhouse gas (GHG) emission standards for planes.
But these standards fall behind existing technology by more than ten years and won’t apply to new planes until 2028, at which point EPA expects all airplanes to already comply with the standards or be phased out. “As a result, the agency doesn’t project any emissions reductions from the rule,” Earthjustice explained in a press release.
Earthjustice is leading the legal challenge on behalf of the Friends of the Earth and Sierra Club, along with the Center for Biological Diversity. The environmental groups are petitioning for review of the rule in the U.S. Court of Appeals for the District of Columbia Circuit. Separately, the coalition of a dozen states and DC filed a lawsuit challenging the rule. The states argue EPA was “arbitrary and capricious” in enacting a rule that fails to reduce emissions beyond business-as-usual, lags existing technology by a decade, and fails to consider effective alternatives. The states suing EPA over the emissions rule for airplanes include Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Vermont, and Washington.
“The United States produces more than one quarter of all global aviation emissions—a serious threat to our climate that this rule seeks to cement rather than address,” said Connecticut Attorney General William Tong. “For four years, the Trump Administration recklessly sought to eviscerate and undermine every facet of our environmental protections. This rule is yet another unlawful effort to lock in their dangerous pro-fossil fuel agenda on their way out the door, and we won’t allow it.”
“This standard fails to reduce emissions from aircraft and represents a missed opportunity to address climate change,” Sarah Burt, deputy managing attorney of Earthjustice’s International Program, said in a press release. “The Clean Air Act clearly establishes an obligation to reduce emissions of harmful pollutants that endanger public health and welfare. Our petition asks the D.C. Circuit to hold EPA to this obligation to work toward a future where our transportation systems no longer contribute to a warming world.”
French "Case of the Century," Alleging France is Falling short on Climate Action, Comes Before Administrative Court in Key Hearing
* UPDATE (1/16/21) – France is at fault and could indeed be held responsible for failing to take sufficient climate action, the public rapporteur (an independent advisor to the court) concluded. This finding is an important step towards climate justice in France.
As the coalition of environmental and human rights groups bringing the legal case explained: “ If the court follows the conclusions of the public rapporteur, the responsibility of the French State in climate change would be recognized because of the insufficiency of its actions. This would be a historic breakthrough in French law and a major victory for the climate and for the protection of everyone in the face of the consequences of climate change. All victims of climate change could then rely on this jurisprudence to assert their rights and obtain redress. The State would then come under strong pressure to finally implement the necessary actions to limit warming to 1.5 ° C.”
During the hearing on January 14, Amélie Fort-Besnard, the public rapporteur, advised the court to find France at fault for not taking all necessary measures to meet its climate commitments. But rather than issue an order for additional measures, she recommended the court wait to allow time for the two sides in this case to engage in discussion, as well as for the Council of State to hand down its decision in a related climate lawsuit brought against the French State by the community of Grand-Synthe.
Additionally, the public rapporteur recommended the administrative court recognize ecological damage as a valid cause of action, which would be a major breakthrough in environmental law. According to Oxfam France (via English translation): “This recognition of ecological damage by an administrative authority means that a public person, like a private person, can be held liable for damage caused directly to the environment. For the public rapporteur, climate change is causing such damage and the State can be held responsible for it, because of the insufficient actions taken to fight against it.”
Four environmental organizations are facing off in court today, January 14, against the French state in a climate case alleging France is not taking adequate action on the climate crisis to protect the rights of French citizens.
Dubbed “Affaire du Siècle” or “Case of the Century,” the lawsuit is part of a growing wave of litigation worldwide challenging government policies and responses to the climate emergency. The French case comes before the Administrative Court of Paris, the city where the world convened in December 2015 to adopt the landmark international agreement recognizing the imperative to limit warming to well below 2 degrees C.
Five years later the nations of the world are largely not on a path to achieving this target. Only Morocco and Gambia are projected to meet the 1.5 degree C threshold under current policies, according to Climate Action Tracker, with France and the rest of the European Union deemed “insufficient,” meaning on track for up to 3 degrees C of warming in violation of the Paris Agreement.
It is in this context that the Case of the Century arises before the French judiciary. Led by an organization called Notre Affaire à Tous in partnership with Greenpeace France, Oxfam France and Fondation pour la Nature et l’Homme, the case has garnered support from over 2 million people and seeks to compel France to take all necessary measures to slash greenhouse gas (GHG) emissions consistent with the 1.5 C threshold.
Specifically, according to a summary of the case from the Sabin Center’s climate litigation database, the plaintiffs are also requesting an order that France “take, at least, all necessary measures to achieve France's targets for reducing greenhouse gas emissions, developing renewable energies and increasing energy efficiency; take the necessary measures to adapt the national territory to the effects of climate change; take the necessary measures to protect citizens’ lives and health from the risks of climate change.”
The case alleges that France is in breach of its duties under domestic and international law, such as the French Charter for the Environment and the European Convention on Human Rights. The four organizations launched their legal campaign in 2018 and submitted their summary request (filed their lawsuit) to the Administrative Court in March 2019.
On January 14 the court is taking up the case in a hearing. Both sides will present their arguments, and the public rapporteur will offer the judges his recommendations. The role of this public rapporteur is to provide the hearing with an independent opinion on the questions involved in the case. A decision from the court is then expected in approximately two weeks, by the end of January.
The French environmental organizations say they are encouraged by a ruling in November 2020 from France’s highest administrative court (the Council of State) ordering France to justify that it is meeting its climate goals without more ambitious policies. That ruling came in a separate lawsuit brought against France by the coastal community of Grande-Synthe, which is facing climate impacts like extreme flooding and rising seas.
In a post on its website (translated to English) describing the case and the Jan. 14 hearing, the Fondation pour la Nature et l’Homme called this day in court a “decisive day for climate justice,” one where “justice could finally force the State to respect its commitments to fight against climate change.”
Exxon Doubles Its Defense, Urges Mass. State Court to Toss Mass. Attorney General's Climate Fraud Case with Two Motions to Dismiss
ExxonMobil is pushing back, and trying to play the victim card, in response to a climate change accountability lawsuit filed in October 2019 by the Massachusetts attorney general alleging investor and consumer fraud over the oil major’s statements and advertising pertaining to its fossil fuel products and their impacts on the climate system.
Massachusetts Attorney General Maura Healey sued ExxonMobil on October 24, 2019 for allegedly misleading investors and consumers on climate risks of Exxon’s business and products – including systemic risks to the economy – in violation of Massachusetts’ consumer protection statute. The complaint includes allegations of failing to disclose climate-related risks to Exxon’s business to investors, deceptive marketing of certain Exxon products as environmentally friendly to consumers, and ongoing misleading or greenwashed advertising of the company to obscure Exxon’s harmful environmental and climate impact. It is just one of almost two dozen lawsuits targeting Exxon and similar petroleum giants for deceptive behavior on the climate consequences of their products to protect their business interests.
Most of these lawsuits are tied up in jurisdictional battles over whether they belong in state or federal courts. Exxon tried unsuccessfully to boot the Massachusetts lawsuit to federal court, and now it is aiming to get it tossed out of Massachusetts state court.
Last summer the company filed two motions to dismiss AG Healey’s suit in Suffolk County Superior Court. These filings, and the Attorney General’s response, were made public in December 2020. Exxon also filed replies in December supporting its two motions.
The oil major is not only pushing back with a standard motion to dismiss, but is complaining that its protected speech or “petitioning rights” are unlawfully targeted by the lawsuit. In other words, Exxon is playing the victim card and demanding the court dismiss the lawsuit under an anti-SLAPP action. SLAPP refers to “Strategic Litigation Against Public Participation” and anti-SLAPP laws are intended to protect against lawsuits quelling free speech.
Exxon filed a special motion to dismiss under the Massachusetts anti-SLAPP statute on July 30, 2020. In its motion, Exxon argues that the Mass. AG lawsuit amounts to “lawfare,” and is an attempt to squash political opponents who do not share the Commonwealth’s views on climate change.
“Those, like ExxonMobil, who decline to parrot the Attorney General’s call for an immediate transition to renewable energy are not simply diverse viewpoints in a public debate with state, federal, and global policy implications, but targets who must be silenced through ‘lawfare,’” Exxon attorneys write.
Exxon also alleges that the Attorney General “conspired” with private interests like environmental activists and attorneys to bring this litigation, and that the real objective is to impose the AG’s preferred “views” and policies on climate. In essence, Exxon argues that the AG’s allegations concern policy disagreements, not deceptive or fraudulent conduct. According to Exxon, the “Attorney General brought this suit to advance its preferred climate policies by silencing perceived political opponents.”
In its regular motion to dismiss filed on August 5, 2020, Exxon takes a number of shots at the Mass. AG lawsuit, claiming: “The Attorney General seeks headlines, not solutions,” and insisting the “Attorney General may not use a civil lawsuit to make ExxonMobil its political scapegoat.” Exxon also points the finger at Massachusetts for being “as dependent on fossil fuel as ever” while simultaneously defending fossil fuels as a “lawful product that is essential to modern life.” Furthermore, Exxon argues it does not sell gas directly to Massachusetts consumers and that its retail gas stations are “independently owned” and operated through a Brand Fee Agreement.
According to Exxon, the lawsuit must be dismissed due to lack of personal jurisdiction, failure to state a claim, and violations of the Constitution. Exxon says that its allegedly misleading claims did not specifically target Massachusetts, and that its commercial speech is protected under the First Amendment.
Attorney General Healey, however, told the court in filings on Oct. 30, 2020 opposing Exxon’s motions that this is simply not the case. The First Amendment “simply does not protect fraudulent and deceptive speech,” the AG explains.
Massachusetts says that Exxon’s deception and climate denial “continues to this day.”
“But like the tobacco industry before it, ExxonMobil has engaged in a cover-up,” the AG brief explains. The brief recalls many of the allegations asserted in the complaint. The AG also argued that Exxon’s anti-SLAPP action should be dismissed, as allowing it would interfere with traditional state law enforcement authority and because Exxon has not demonstrated that its deceptive conduct constitutes free speech.
Hearings on one or both of Exxon’s motions to dismiss could be scheduled in the coming months.
The city of Baltimore and its supporters in litigation against the fossil fuel industry over climate damages are pushing back against industry arguments in oil companies’ appeal before the Supreme Court. The Supreme Court will hear the case on January 19, 2021.
In recent briefs submitted in December to the Court, Baltimore and its backers, or amici, argue that the oil companies like Chevron, BP, and ExxonMobil are exploiting a narrow statutory provision that allows for federal appeals courts to review federal court decisions – called remand orders – sending a case back to its state court origins. Baltimore and a coalition of state and local government groups specifically call out this exploitation as “gamesmanship” in their briefs.
The issue before the Supreme Court is technically a very wonky one regarding a question of federal civil procedure, namely the scope of appeals courts’ review of remand orders as outlined in a statutory provision (USC § 1447d). However, the oil companies being sued by Baltimore – and the companies’ backers or amici – are urging the Supreme Court to issue a sweeping decision beyond this specific question that would essentially determine that all climate-related lawsuits necessarily belong in federal courts where they must then be dismissed. Baltimore’s climate lawsuit, and others like it brought by states and municipalities against fossil fuel companies, have been tied up in procedural wrangling over this federal vs. state court issue.
This wrangling has caused considerable delay in the litigation, which seeks to hold fossil fuel companies liable for alleged deception and disinformation campaigns on the dangers of their products to the climate system.
In a climate liability case similar to Baltimore’s brought by several Colorado municipalities, for example, the battle over federal vs. state court jurisdiction has dragged out for a year and half already. The Colorado communities - the city and county of Boulder and San Miguel County – are suing Exxon and Suncor entities to hold them accountable for climate disinformation and damage. These communities submitted a brief backing Baltimore. Their brief notes that the oil company defendants in their lawsuit have recently filed a petition to the Supreme Court (filed December 8, 2020) seeking the same appeal and relief that the companies seek in the Baltimore case. The Colorado brief also says that the companies’ appeal is disingenuous because their end game is to avoid accountability in court altogether; as the brief puts it, the companies are “setting up a game of three-card Monte, where they simply can never be sued.”
Another amicus or supporting brief backing Baltimore came from 20 attorneys general (all Democrats) from 19 states plus the District of Columbia. A handful of these AGs have brought lawsuits of their own against the oil companies over the alleged deception and fraudulent conduct, all under state law claims such as consumer protection statutes that have no relevance to federal law or federal interests. “Like Baltimore in this case, States have sought to enforce their own laws by bringing lawsuits under state law in state courts against fossil-fuel companies for their decades-long campaigns to conceal their knowledge of climate change and the central role their products play in causing climate change,” the AGs note in their brief.
The states’ brief also explains how this Supreme Court appeal and procedural wrangling in climate cases needlessly delays the litigation. “These delays defer desperately needed relief,” the brief argues. “Baltimore, Rhode Island, and similar plaintiffs brought these actions at the time that they did because state and local governments are incurring costs from climate change effects now…But defendants have been able to delay any reckoning by endlessly litigating threshold removal questions. It should not take three years to determine which court should hear a case.”
The attorneys general supporting Baltimore in this appeal represent Rhode Island, New York, California, Connecticut, Delaware, DC, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Virginia, and Washington. Another group of states with Republican attorneys general are backing the oil companies.
The U.S. federal government under the outgoing Trump administration is also supporting the companies, as are a handful of fossil fuel industry trade associations and allies like the American Petroleum Institute, the National Association of Manufacturers, and the U.S. Chamber of Commerce.
But one brief backing Baltimore, submitted by six U.S. Senators (all Democrats), calls out these friends of Big Oil. As the senators explain, these groups are tied to fossil fuel funding and interests and have helped block policy action on climate; yet these groups and the oil companies aim to deprive communities of pursing climate-related actions in courts in favor of political forums where they have undue influence. “They ultimately wish to steer all such [climate] matters into the executive and legislative branches, where they have maintained a decades-long political blockade,” the senators write in their brief.
The six senators backing Baltimore include Ben Cardin and Chris Van Hollen of Maryland; Elizabeth Warren and Ed Markey of Massachusetts; and Sheldon Whitehouse of Rhode Island and Richard Blumenthal of Connecticut. “We see this gambit, joined by fossil fuel-connected amici, as part of a continuing effort to block progress on addressing climate change,” they argue.
Additional amici briefs backing Baltimore came from a group of civil procedure and federal court scholars, from a coalition of state and local government organizations such as the U.S. Conference of Mayors and the Council of State Governments, and from environmental groups Chesapeake Bay Foundation and the Natural Resources Defense Council.
The Supreme Court has set oral argument for January 19, 2021. A ruling in favor of the oil companies – a real possibility given the conservative majority of the court – could either reopen the federal appeals courts’ review of remand orders in Baltimore’s case (and likely a few other climate cases like it), or could go further and determine that all climate liability litigation must be brought in federal courts under federal common law, which is the outcome that the oil companies and their allies most desire. A previous Supreme Court decision from a decade ago set a precedent that climate change lawsuits brought under federal common law must be thrown out.
The UK Supreme Court ruled this month in favor of Heathrow International Airport in a case challenging the airport’s third runway expansion project on climate change grounds. British environmental law charity Plan B – one of the plaintiffs in this case – called the ruling a “betrayal” to young people and the Global South who are most vulnerable to climate change impacts. Plan B director Tim Crosland broke the court’s embargo on the verdict by announcing it a day ahead of schedule as an act of civil disobedience.
The Supreme Court ruling, issued December 16, 2020, overturns a Court of Appeal decision earlier this year to invalidate the third runway project. The appeals court ruled on February 27, 2020 that the Secretary of State for Transport, Chris Grayling, did not take into account the Paris Agreement goals in the national policy supporting the airport expansion. The UK government accepted this ruling, but two private parties with stakes in airport expansion (including Heathrow Airport Limited) did not and they appealed to the Supreme Court. In its verdict, the Supreme Court determined that the Paris Agreement is not official government policy and that no legal obligations were breached in considering airport expansion.
Environmental groups Plan B and Friends of the Earth first brought the climate lawsuit against the UK government over the Heathrow expansion in 2018, alleging violations of UK statutory law and the Paris Agreement. Plan B argued that the Transport Secretary failed to consider the more ambitious Paris Agreement objective to limit warming to 1.5 degrees C in approving the runway expansion. The government’s initial 2050 climate target was based on a 2 degree C warming limit, though the Paris Agreement (adopted in 2015) aims to limit warming to well below 2 degrees C.
“The Supreme Court’s judgment, which has legitimised Mr. Grayling’s use of the deadly 2˚C threshold, has betrayed us all,” Plan B’s Tim Crosland said in a press statement reacting to the December 16 verdict.
Plan B says it will continue to challenge the airport expansion by taking its case to the European Court of Human Rights. That international court, based in Strasbourg, France, currently has two other climate change lawsuits pending.
Furthermore, the airport expansion could face additional legal challenges going forward in the planning stage. As Plan B explained in an emailed statement: “Before work can progress Heathrow Airport Limited will need to obtain a ‘Development Consent Order,’ which is subject to a further legal challenge. As the Supreme Court made clear, that process would need to consider current climate obligations, including the UK's net zero by 2050 target. Heathrow expansion implies 40 million tonnes of CO2 from UK aviation by 2050, so that’s an obvious problem.”
Friends of the Earth said they would also continue to challenge the airport expansion in the planning process.
“This judgment is no ‘green light’ for expansion,” said Will Rundle, head of legal at Friends of the Earth. “It makes clear that full climate considerations remain to be addressed and resolved at the planning stage. Heathrow expansion remains very far from certain and we now look forward to stopping the third runway in the planning arena."