Email Icon Twitter Icon Facebook Icon Youtube Icon

E&E News: Biden, SCOTUS Could Sway Climate Litigation in 2023

CLIMATEWIRE | In one of the most closely watched climate legal battles of 2023, the White House and the Supreme Court are poised to play critical roles in litigation that could cost the fossil fuel industry hundreds of billions of dollars.

The high court in October invited the Justice Department to share its views on a long-running venue fight that could sink nearly two dozen state-level lawsuits asking oil and gas companies to pay for the costs of a warming planet.

DOJ’s response is expected early this year and could influence the court’s decision whether to wade into the procedural morass for a second time. A Supreme Court ruling moving the lawsuits to federal judges could scuttle the cases or impose further roadblocks (Climatewire, Oct. 12, 2022).

“They’re going to do whatever they want to do or what they think is right to do,” Pat Parenteau, an emeritus professor at Vermont Law and Graduate School, said of the justices. “But they do have to think about just how sweeping a decision it would be to load the federal courts with cases that are now being litigated in the state courts.”

The climate liability cases are just one part of broader legal efforts by environmental groups and young activists to hold governments and companies to account for climate change — and by Republicans and oil industry allies to weaken aggressive policies.

While appellate judges from Rhode Island to Hawaii in 2022 rejected oil and gas companies’ attempts to quash the climate liability lawsuits by moving them from state to federal court, industry lawyers believe the Supreme Court may be sympathetic to their claims.

The justices in 2021 directed appeals courts to consider each of industry’s eight arguments as to why the cases should be heard by federal judges, including that energy production is often done at the direction of a “federal officer.”

Many of the cases charge the companies with violating state consumer protection laws by deceiving the public about the dangers of burning fossil fuels and ask oil companies to pay the costs of combating wildfires, flooding and other effects of climate change.

“The appeals courts have considered every argument, they’ve meticulously explained their rationale, they’ve applied all of the relevant precedents, and they’ve all reached precisely the same conclusion,” said Parenteau.

But unanimity among lower courts is no guarantee that the Supreme Court will side with the state and local governments, Parenteau said, pointing to the court’s decision in June to overturn 50 years of abortion precedent in Dobbs v. Jackson Women’s Health Organization.

Oil and gas companies, however, argue that climate liability lawsuits raise questions that can’t be resolved by the courts. And they warned the Supreme Court that the lawsuits pose a “massive monetary liability” to the industry.

The litigation has been compared to legal battles waged against the tobacco industry, which culminated in 1998 in a $206 billion settlement (Climatewire, March 10, 2021).

“These are policy decisions that really belong with the legislative and regulatory bodies,” Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the climate lawsuits, said at a recent Pepperdine University School of Public Policy webinar.

“This litigation isn’t very useful,” he said. “It distracts from what actually needs to be done. What we really need are real global solutions.”

Read the full column here