MAP’s Phil Goldberg Discusses the Hearing and Its Potential Impacts on the Litigation

The Supreme Court of the United States heard oral arguments last week in the City of Baltimore’s climate tort lawsuit against energy manufacturers. The question before the high court is narrow and procedural, related to what federal appellate judges should review when hearing the appeal of an order sending a case back to state court.

Following the oral argument, Special Counsel for the Manufacturers’ Accountability Project Phil Goldberg joined a teleforum hosted by the Federalist Society to provide his thoughts on the hearing and its broader implications for climate litigation.

• Mr. Goldberg noted that the Court seemed open to the manufacturers’ position—that the entire remand order should be reviewed—remarking that the “statute is pretty clear, and justices across the political spectrum seem to understand that.” Justice Kavanaugh, for example, in questioning of the City of Baltimore’s counsel, commented, “As Justice Gorsuch said, I think, the text in isolation is a problem for you, and that means the text is a problem for you.” Meanwhile, Justice Breyer told Baltimore’s counsel that the linguistic argument is “tough for you.”
• The manufacturing community believes that the federal forum is the most appropriate for climate tort cases, Mr. Goldberg added: “At the end of the day, we do believe these cases belong in federal court. The allegations in them are not tied to any specific local community—Baltimore or anywhere else—which is exactly why these cases are being filed in so many jurisdictions. This is clearly a national, federal issue.” (Mr. Goldberg had filed an amicus brief on behalf of the National Association of Manufacturers explaining the reasons why.)
• To conclude his remarks with the Federalist Society, Mr. Goldberg looked to the future: “Where this case—and the larger issue of dealing with the climate—heads is something that needs to be addressed in a very thoughtful manner. Using state tort law to drive energy policy and trying to scapegoat individual industries or entities for what is truly a shared global challenge is the wrong way to go. Folks that look at the Manufacturers’ Accountability Project website will see that we released a poll last week that shows the American people truly understand that dealing with climate change is not about pointing fingers and placing blame. It’s about all of us coming together to deal with this problem; and that’s where we are headed, hopefully, and we look forward to engaging in that dialogue and discussion.”

A full recording of the discussion can be accessed here.