Exxon seeks a Supreme Court bailout
Marco Simons, an attorney for Colorado communities fighting for climate accountability, explains why Exxon is “deathly afraid” of a jury trial.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
Potentially life-threatening heat waves spread across the U.S. this week, leaving more than 100 million people, over a third of the U.S. population, under warnings to stay indoors. The temperature spike started out west over the weekend, combining with record drought to fuel new wildfires from southern California to Arizona and New Mexico, forcing people to flee their homes.
ExxonMobil, which President Biden last week said makes “more money than God,” predicted decades ago that its fossil fuel products would make such disasters more frequent and severe.
Now, facing lawsuits from more than two dozen states and municipalities for lying about that threat, the oil giant has once again appealed to the U.S. Supreme Court in the hopes of avoiding accountability.
After the U.S. Court of Appeals for the Tenth Circuit ruled that a lawsuit against Exxon and Suncor Energy from three Colorado communities should proceed in state court, where the case was originally filed, the oil companies are asking the nation’s high court to step in and bail them out.
The counties of Boulder and San Miguel, along with the City of Boulder, are seeking to make the polluters pay for the worsening climate damages their residents now face. Exxon and Suncor argued the case is better suited for federal court — an argument that’s been rejected by courts across the country.
Exxon has asked the Supreme Court to intervene on the issue of jurisdiction twice before, requesting its review of lower court rulings in climate liability lawsuits filed by Baltimore, and San Francisco and Oakland. Both times, the court said no thanks — but the oil major still isn’t calling it quits.
I asked Marco Simons, general counsel for EarthRights International and a member of the legal team representing the Colorado communities in their case, to help us understand Exxon’s strategy and what we might expect from the Supreme Court. Our interview, edited for length and clarity, is below.
EK: The U.S. Supreme Court has refused Exxon’s requests for justices to weigh in on jurisdiction in climate liability lawsuits twice before. Why would the company try again?
MS: There’s no reason for them not to keep trying because, every time they do, they secure some amount of delay in the underlying litigation. They’re essentially taking every step possible to avoid liability and to delay the decisions in these cases. I expect them to continue to seek review from the Supreme Court at almost every conceivable stage.
It sure seems like Exxon and Suncor really, really don’t want to face these Colorado communities in state court. They have always maintained that they did nothing wrong. What do you think they’re so afraid of?
I think they’re afraid of going to a jury. All we’ve been saying from the beginning is that Exxon bears some responsibility for climate change. The way we figure out the degree of responsibility in our legal system is that we put the facts before a jury and let them decide. [Exxon is] deathly afraid of that. Why they spend so much time fighting over state court versus federal court — I think they think they will get a more favorable hearing in federal court. The corporations often take that view. But it’s a way of delay — fighting over procedure for literally years now, without advancing closer to the ultimate jury trial.
Every time we share the facts of what Exxon knew, the gulf between their internal knowledge and their actions and public statements, people are pretty surprised and somewhat horrified. Even at this point, that story is still not widely known. So if I were Exxon I would be afraid too. They would much rather try to rely on judges to somehow get rid of litigation rather than allow a jury to see the full picture of their misleading activities and their contributions to climate change over the years.
Since last year, every appeals court to have reviewed Big Oil’s arguments over jurisdiction — which the Supreme Court ordered them to do — has ruled in favor of communities, keeping the climate liability cases in state court. How might this slew of losses for the fossil fuel industry affect the Supreme Court’s decision to hear this case?
I’m not going to predict what the Supreme Court will do here, but in most cases, if the lower cases are essentially uniform in their decisions, that tends to make it less likely that the Supreme Court will hear the case. Because there isn’t really a dispute for them to settle. So that would be the conventional wisdom.
One thing I would note that may also be significant here is that there’s a wide range of judges, appointed by many different presidents, Democrats and Republicans, from very different judicial philosophies, who have joined in these decisions. It’s not just the number of decisions that have gone our way, but also the ideologies and judicial styles of the judges that may send a signal that this is not an issue in which there is serious dispute. It isn’t an issue that breaks down along liberal versus conservative judge lines. And so there’s no particular need for the Supreme Court to step in.
Big Oil and its allies will often point to a lawsuit brought by New York City against Exxon, which was ultimately dismissed, as a reason why the Supreme Court needs to review this issue. Why is it misleading to compare that case to Boulder’s?
I think as the court of appeals in our case took pains to point out, their decision here does not actually conflict with the City of New York decision precisely because that case was filed in federal court. The issue here is whether a case that’s filed in state court can be moved to federal court. That issue did not come up and was not resolved in [New York City’s] case.
What are some potential outcomes if the Supreme Court does decide to grant Exxon and Suncor’s petition?
The Supreme Court, in some sense, can do whatever it wants. But since the issue here is only whether the case [is heard] in federal or state court, the outcome almost certainly would be a ruling where the Supreme Court agrees with all the other courts that have decided these cases belong in state court — or it makes a new rule, which would depart from prior precedent, which says these cases can be moved to federal court. Those are probably the only likely outcomes here — but with the Supreme Court, you never know.
The last time I spoke to you was in December, after the Marshall Fire tore through Colorado communities outside Boulder. How are those communities doing now, and why is it so important for them that this case doesn’t continue to be delayed?
The communities affected by the Marshall Fire are rebuilding, but it was a devastating event. Unfortunately, it’s not isolated. It was notable for its uniqueness in the type of fire and the time of year, but I think it’s indisputable at this point that wildfires are harming communities that [never had them] before, in times of year that they never have before, and with significantly greater frequency than in the past, both in Colorado and throughout the country. And that is clearly linked to the alteration of the climate that is contributed to by these companies. It’s not the only ongoing impact: communities like Boulder and elsewhere in Colorado are facing changing weather patterns, including reduced snowfall, the supply of water from snowmelt, and all kinds of other impacts from climate change that are occurring there right now.
That underscores the urgency of addressing these cases. Because these cases are fundamentally about who pays for the harms that are occurring due to climate change. Is it going to just fall on the taxpayers? Or is some of that also going to be borne by the corporations that profited the most from contributing to the climate crisis and misled the public while doing so? Right now, all of those costs are falling on taxpayers. So it is urgent to get these communities the support that they need to adapt to warming temperatures and changing weather patterns, to build resilience, and to pay for the costs that are unavoidable as the alteration of the climate continues into the foreseeable future.
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