The Supreme Court calls DOJ off the sidelines on climate accountability
It’s time for the Biden administration to pick a side.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
Eight U.S. Senators are calling on the Biden administration to declare a national climate emergency — and for the Department of Justice to finally take on Big Oil. In a letter, led by U.S. Senator Jeff Merkley of Oregon and sent last week, the senators called on DOJ to “investigate the fossil fuel industry for its decades of lying about its products and consider bringing a civil suit against the industry the way it successfully sued the tobacco industry.”
But it’s not just Democratic senators calling on the DOJ to pick a side in the fight for climate accountability. The U.S. Supreme Court is throwing the Biden administration into the ring, too.
SCOTUS began a new term last week with a climate accountability case on its docket — a lawsuit that three Colorado communities filed to make ExxonMobil and Suncor Energy pay for the costs of climate damages they knowingly caused.
The fossil fuel companies are asking the high court to consider their appeal of a ruling from the Tenth Circuit Court of Appeals, which ruled that the Colorado communities’ lawsuit should proceed in state court.
The issue at hand — whether the case should be heard in state court, where the cases were filed, or federal court, where the fossil fuel companies think they have a better shot at escaping accountability — is one Big Oil has asked the Supreme Court to rule on twice before. Both times, in cases filed by Baltimore and California municipalities, SCOTUS declined to weigh in.
This time, instead of deciding whether to hear the companies’ petition or not, SCOTUS asked U.S. Solicitor General Elizabeth Prelogar to “to file briefs in these cases expressing the views of the United States” before they consider the issue any further. (The solicitor general is a high-ranking Justice Department official who represents the U.S. government before the Supreme Court.)
As you may remember from a previous ExxonKnews, the question of the Department of Justice’s stance on these cases is still outstanding and could help determine whether communities burdened by the massive costs of climate change ever see their day in court.
By this point, the administration seems to have run out of excuses for its inaction — with even a conservative-majority bench now looking to the Biden DOJ for guidance.
In fact, the last time SCOTUS heard a climate accountability case, the lawsuit filed by Baltimore, was on January 19, 2021 — the last full day of the Trump administration. Trump’s Department of Justice, no surprise, spent its remaining hours in office backing Big Oil.
Even though President Biden campaigned on a pledge to direct his DOJ to “strategically support ongoing plaintiff-driven climate litigation against polluters,” the DOJ has been silent on these lawsuits for two years.
In the meantime, fossil fuel companies have continued to use the Trump DOJ’s still-standing support in their own defense.
A growing number of elected officials that represent the communities suing Big Oil have urged the administration to take a stand.
The calls are coming from attorney generals, senators, and even lawmakers from Biden’s home state.
Attorneys general from Connecticut, Delaware, Massachusetts, Minnesota, Rhode Island, and the District of Columbia asked the DOJ in a 2021 letter to reverse its Trump-era positions in the lawsuits, emphasizing that those prior positions “contravene President Biden’s pledge to support lawsuits like the ones our states have filed.” They added, “The urgency and importance of DOJ reversing these positions cannot be overstated.”
Nine U.S. Senators wrote to Garland with the same request, highlighting that the fossil fuel defendants have continued to cite the Trump administration’s support in climate liability cases to their own advantage and “will continue to undermine justice by using these briefs until the Department reverses the positions it has taken in those lawsuits.”
The Justice Department still hasn’t responded — even to pleas from a dozen legislators in Delaware, President Biden’s home state. “We respectfully call on you to reexamine and reverse DOJ’s support for fossil fuel polluters, which is at odds with the stated goals of your department and the Biden administration, and file a brief supporting Delaware’s communities in our fight for climate accountability and justice,” the lawmakers wrote. The success of Delaware’s own climate liability lawsuit could be “an urgent matter of survival for many of our constituents, particularly our frontline communities,” they said.
As Hannah Story Brown, a researcher at the Revolving Door Project, recently explained in Washington Monthly, backing climate liability lawsuits would be a low-cost and effective way for the Biden administration to support communities in the face of climate catastrophe. “Throwing the federal government’s weight behind the governments fighting to hold fossil fuel companies accountable shouldn’t wait any longer,” she wrote.
The lower courts have made themselves clear: climate accountability lawsuits belong in state court.
It’s unclear how long it will take DOJ to respond to SCOTUS’s request, but lower courts have been consistent on the underlying question of whether climate liability cases filed in state court should stay there.
In six separate rulings, five circuit courts — the First, Third, Fourth, Ninth, and Tenth — have unanimously decided that the cases should proceed to trial in state court. Last month, U.S. Judge Stephanie Gallagher, a Trump appointee, became the 11th federal district judge to reach the same conclusion, ruling that lawsuits filed by Annapolis and Anne Arundel County, Maryland, were properly filed in state court.
Here’s what we do know: the fossil fuel industry will continue making its losing argument for as long as it can in order to delay trial. We also can’t put anything past this Supreme Court, which has been swayed by fossil fuel interests before. But the Biden administration has a chance to make good on its declared commitment to climate justice and accountability, and to throw its support behind communities instead of Big Oil. They should take it.
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