Big Oil’s Hail Mary for the holiday season
Fossil fuel majors got their foot in the door of the highest court in the land. Now they want it to undermine accountability once and for all.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
On Thanksgiving eve, the Supreme Court scheduled arguments on a narrow procedural issue in the city of Baltimore’s climate accountability lawsuit for January 19.
But if Big Oil gets its way, the justices wouldn’t simply resolve what the industry perceives as an ongoing jurisdictional dispute, which the court initially agreed to consider. Now Big Oil and their allies are also asking the justices to issue a much more sweeping ruling that could undercut climate damages lawsuits across the country.
In a brief filed on November 16, lawyers for BP, Chevron, Exxon, Shell and other oil companies urged the high court to overturn a series of lower court rulings and remove Baltimore’s case “and others like it” from state court to federal court — where the industry is hoping to have every case against them thrown out.
“This is a Trojan Horse strategy,” explained Pat Parenteau, Professor of Law and Senior Counsel in the Environmental Advocacy Clinic (EAC) at Vermont Law School, over email. “The Court granted review on a narrow procedural question regarding the scope of an appeal from an order sending the case back to state court. The oil companies have seized the opportunity to argue that the Court should skip that step and simply rule that all the climate liability cases belong in federal court.”
Why federal court? Because there, these companies can make the false assertion that they’ve been pushing all along: that these cases are an attempt at regulating emissions through the courts (they are not), and such claims are displaced by the Clean Air Act, which says only Congress has that authority. As you and I well know by now, Big Oil has a bit of a track record when it comes to lying about and mischaracterizing what doesn’t suit their purposes — and this is no exception.
These cases have never been about setting climate policy or regulating emissions. They’re about holding the industry accountable for its calculated, decades-long climate disinformation campaigns and the damages they have caused as a result. As Karen Sokol, Professor of Law at the Loyola University College of Law in New Orleans, explains, state courts have been dealing with claims like this — failure to warn, negligence, consumer fraud, and the like — from the Industrial Revolution all the way up to Big Tobacco and the opioid crisis.
“Even if we start to have really robust climate policy with the new Biden administration, there will still be space for these state claims,” said Sokol. “The federal government isn’t going to police deceptive marketing, and that’s what this is about. Although the harm is bigger than we’ve ever faced, we’re still going to have this big gap and need accountability for what the industry has done — some modicum of recovery for those who have been harmed and who’ve suffered damages, and who don’t have the funds to adapt.”
Last week, ten amicus briefs were filed on behalf of the industry — including by several Republican attorneys general (including Alan Wilson from South Carolina, where the city of Charleston has filed its own climate accountability lawsuit); the Chamber of Commerce and the National Association of Manufacturers (NAM), described in a recent Senate report as one of the two “most influential opponents of climate action”; Trump’s Department of Justice (not the first time they went to bat for Big Oil); and the American Petroleum Institute, the world’s largest oil and gas trade association, which is named as a defendant in consumer fraud lawsuits filed by Minnesota, Delaware, and the city of Hoboken.
NAM’s brief, for example, rehashes the lie that Baltimore’s suit seeks to “regulate the national production and sale of energy products that have been essential to modern life since the industrial revolution.”
“Basically, they’re reframing and recharacterizing these cases as something that they’re not,” said Alyssa Johl, our legal director at the Center for Climate Integrity. “It's no surprise. The industry fears what will happen when well-documented evidence of its deception and denial is presented to a jury in state court.”
And their argument that fossil fuels are essential to modern life, so we should all keep quiet? That’s a whole other can of worms. “The industry got us into a situation where we’re in a very fossil fuel dependent economy, the climate crisis is out of control, and it’s gonna be much more difficult to extricate ourselves than if we had known what they knew when they knew it,” said Sokol. “But with this new administration, with all the activism we’ve seen, and this discovery process, we’re at the cusp of having a real conversation about it. And I see this as a really urgent matter for us as a nation.”
The court’s ruling could depend on a few factors that are still up in the air, like how many justices will actually participate in the arguments. Justice Samuel Alito already recused himself from the decision about whether to take the case. But what about the newest justice, Amy Coney Barrett, who, as we’ve discussed, has ties to Shell and the American Petroleum Institute? Will she participate despite her clear conflict of interest?
“[These companies] are banking on the three Trump appointees to save them,” said Parenteau. “The outcome might well come down to Justice Amy Coney Barrett's vote.”
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Until next week!