Climate liability has its day at the Supreme Court (sort of)
We’ve got the highlights from this week’s SCOTUS arguments.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
You don’t need us to tell you that this was a historic week. But it’s quite possible that an important moment in climate accountability flew under your radar. For the first time ever, on Tuesday, the U.S. Supreme Court heard oral arguments in a lawsuit seeking to make Big Oil pay their fair share of the climate damages they knowingly caused.
Eight of the nine justices (more on that later) considered a narrow procedural question that Exxon, BP, Chevron, Shell and other major oil companies posed in their ongoing attempt to delay a lawsuit that the City of Baltimore filed against them two and a half years ago.
The arguments didn’t explore the central question of whether Big Oil should pay for the spiraling climate damages like heat waves and rising seas they’ve caused and lied about, but they were important nonetheless to the growing number of lawsuits aiming to hold Big Oil accountable.
Here’s what you need to know:
The justices appeared skeptical of Big Oil’s arguments.
Four federal appeals courts across the country ruled last year that climate liability cases, including Baltimore’s, should go forward in state court — which is exactly what Big Oil doesn’t want. Why? The industry is afraid to face discovery and trial in state court, where fraud, public nuisance, and the other claims brought in these cases are traditionally heard — and they are desperate to avoid accountability as long as they possibly can.
On Tuesday, Big Oil’s lawyers argued that appeals courts should have to go back and consider additional arguments for moving the cases to federal court — arguments already rejected by the lower federal courts — where the industry hopes they stand a better chance.
“They're basically fighting to keep this out [of] state court because they're desperate to keep the social license that they've cultivated with this disinformation campaign,” Karen Sokol, Professor of Law at the University of Loyola in New Orleans, told NPR.
But several of the justices, both conservative and liberal, sounded skeptical of the industry’s ask. "It seems as though we are smuggling into appellate review other issues that are not necessarily the issues that are front and center of the federal law concerned," Justice Clarence Thomas told one attorney.
Justice Sonia Sotomayor also noted that the industry was seeking an "exception that could open the floodgates of appellate litigation in the federal system."
The court (mostly) stayed focused on the question before them.
What the industry really wanted — and what they asked for after the justices agreed to hear the procedural question — was a sweeping ruling that would bypass the appeals courts altogether and send Baltimore’s case “and others like it” directly to federal court.
But as Pamela King at E&E put it, the justices seemed concerned by the industry’s attempts at “hiding elephants in mouse holes” and kept focused on the procedural question at hand.
Even Justice Amy Coney Barrett, who, uh, doesn’t usually hear arguments involving Shell, suggested to the industry’s lawyer that it would be “fairly aggressive” for the court to address the question of where the case should be heard.
Which brings us to our next point...
Justice Barrett ended up hearing the case despite the many reasons for her to recuse.
Barrett’s father worked as a lawyer for Royal Dutch Shell — one of the defendant companies in Baltimore’s lawsuit — for 29 years, and had a prominent role as a member of a subcommittee of the American Petroleum Institute, the industry’s largest trade association, which filed a brief in support of the industry in this case. Barrett recused herself from cases involving Shell before she was on the Supreme Court, so it seemed like sitting this one out would be a no brainer.
But despite her many conflicts of interest, and calls for her to recuse, Justice Barrett still showed up to the virtual bench on Tuesday.
Justice Alito, who owns stock in two of the oil companies named in the case, did recuse himself.
The Trump administration, on its final day, argued alongside Big Oil.
The Trump administration spent its lifecycle swindling the public for Big Oil: defending the industry in climate lawsuits, passing out drilling permits like candy, knocking down health and safety regulations during a pandemic, and more. It’s poetic that the closing act of the Trump Department of Justice, on his last day in office, would be to fight for polluters over people in the nation’s highest court.
President Biden’s administration has pledged to support climate liability and to hold polluters accountable, so we would hope that the new Department of Justice would reverse the federal government’s position in this case.
While the courts continue to ponder these cases, communities still wait for justice.
“It is time for the case to start moving,” said Sara Gross, Chief of Affirmative Litigation Division in the Baltimore City Department of Law, after the arguments. “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.”
A ruling is expected sometime this spring.
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