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.