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Where is the DOJ on climate accountability?
Biden promised to direct his Department of Justice to “strategically support” climate lawsuits against polluters, but communities are still waiting.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
U.S. Attorney General Merrick Garland last month announced the creation of a new environmental justice office within the U.S. Department of Justice to address the “harm caused by environmental crime, pollution and climate change” in low income communities and communities of color across the country. The New York Times called it the department’s “most important step, by far” in “a series of policies intended to elevate the department’s environmental justice efforts from the symbolic to the substantive.”
But more than a year into Joe Biden’s presidency, the Justice Department still hasn’t made any move — substantive or symbolic — to hold accountable the corporations most responsible for fueling the climate crisis. In 2020, Biden campaigned on a pledge to “strategically support ongoing plaintiff-driven climate litigation against polluters,” a clear reference to the lawsuits that now seven attorneys general and 20 cities and counties have filed to hold fossil fuel corporations accountable for climate fraud and damages.
During the Trump administration, the Department of Justice defended Big Oil against climate liability lawsuits, including arguing alongside oil giants before the Supreme Court on Trump’s final day in office. But to date — despite pleas from state, local, and federal officials — the Biden DOJ has yet to reverse that Trump-era support or fulfill the president’s pledge to “strategically support” climate lawsuits.
President Biden and his administration have talked a big game about holding polluters accountable. But they have little to show so far.
During a 2020 Democratic primary debate, Biden said of fossil fuel companies, “This is an industry we should be able to sue. We should go after, just like we did the drug companies, just like we did with the tobacco companies.” In an executive order on his first day in office, Biden stated that his administration’s policy would be to “hold polluters accountable, including those who disproportionately harm communities of color and low-income communities.”
Attorney General Garland followed suit: during his confirmation process, the former judge noted that the Department of Justice has a responsibility to protect the public from “environmental degradation” and “fraud.” But he also declined to comment on climate liability lawsuits when prompted by Senator Richard Blumenthal of Connecticut, who told Garland that “nothing could be so important” as the U.S. DOJ taking action to hold fossil fuel companies accountable “for lying to the American public about the devastating effects of these products on climate change.”
Last year, Assistant Attorney General Todd Kim, head of the DOJ’s environmental division, said that “to the extent a corporate actor violates either civil or criminal law in a manner that implicates environmental justice or the climate crisis, corporations should be aware that my division is paying particular attention to these issues.”
Yet over the past year, the department never weighed in on behalf of communities fighting corporate polluters in court, even as seven different appeals courts heard or are still considering arguments in cases across the country.
The DOJ’s “strategic support” is so far nowhere to be found, despite numerous elected officials imploring the administration to make good on Biden’s promise.
For more than a year, elected officials representing communities that are suing Big Oil have asked the administration to take a stand on behalf of their constituents, who still await justice in the face of growing climate damages.
Once Garland was confirmed, attorneys general from Connecticut, Delaware, Massachusetts, Minnesota, Rhode Island, and the District of Columbia urged the DOJ to reverse its Trump-era positions in the lawsuits, calling the support for Big Oil “misguided” and pointing out that they “contravene President Biden’s pledge to support lawsuits like the ones our states have filed.”
“Moreover, fossil fuel defendants continue to cite DOJ’s prior briefs as if they represent DOJ’s current positions,” the letter states.
Nine U.S. Senators, all of whom represent communities that have taken Big Oil to court over its climate deception, also called on the DOJ to “reassess” the Trump administration’s support of polluters, and to “consider launching its own investigation into the same deceptive practices that lie at the heart of these lawsuits.”
The pleas are also coming from President Biden’s home state, whose lawsuit Biden essentially endorsed in a campaign speech.
This March, a dozen Delaware state legislators urged Garland to take action in support of Delaware Attorney General Kathleen Jennings’ lawsuit.
“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 case, they said, is “an urgent matter of survival for many of our constituents, particularly our frontline communities, and we hope that DOJ will no longer remain on the sidelines.”
“Friend of the court” briefs were due in April, but the administration did not file one in support of Delaware’s case.
So why is the DOJ still M.I.A.?
The major procedural battle has been whether climate accountability lawsuits can move forward in state court, rather than federal court, where Big Oil defendants keep unsuccessfully arguing they belong. Karen Sokol, a law professor at Loyola University, said that while she thought the language of “strategic support” in Biden’s pledge was intentionally vague, she expected the new DOJ to reverse its Trump-era support of polluters on this key jurisdiction issue, if not to affirmatively argue in favor of communities fighting to keep their lawsuits in state courts.
“Agencies that care about public protections have historically valued state laws and thus state courts,” she said. “The Trump administration really was the departure from that. So I think it would make sense for the Department of Justice to come out and say that.”
Sokol says Big Oil’s arguments, rejected by every appeals court to date, are merely attempts to distract the public from their historic disinformation campaigns by keeping the lawsuits stalled in a procedural phase. “We have astounding unanimity [from the federal courts] and these opinions are very, very harsh about the industry's arguments. They’re basically saying, ‘you're wasting our time.’”
But this Supreme Court, not known for respecting precedent, could still complicate the issue in spite of communities’ winning track record on jurisdiction so far. Exxon and other oil giants, seeing the writing on the wall, are now appealing their circuit court losses to the highest court in the land — “the next step in a years-long attempt to steer the climate liability cases away from potentially explosive trials in state courts,” in the words of Bloomberg reporter Jennifer Hizaji.
If those appeals are heard by the Supreme Court, will the Biden administration finally take a stand?
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