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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

Bloomberg Law op-ed: Supreme Court Must Keep Climate Change Cases Out of State Court

By Phil Goldberg

The US Supreme Court is considering whether to hear a lawsuit that could have significant adverse implications for America’s energy and climate policy over the next decade.

The lawsuit, filed by Boulder, Colo. in state court, is part of a national effort to blame climate change on energy companies by making them legally responsible for climate-related infrastructure projects.

The petition for review was filed by two energy giants, Suncor Energy Inc. and ExxonMobil Corp.

The Supreme Court is seeking the Biden administration’s input on whether it should review the jurisdictional question at issue: Can state courts make these decisions, or do questions over causes and impacts of climate change arise under federal law and must they go to federal court? This question is central to the litigation.

The local governments are hoping their state courts will be more likely to allow the cases to go forward.

Climate change is a critical national and international issue, and these cases belong in federal court. The climate issues they raise involve inherently federal questions best handled by Congress and federal agencies.

Read the full column here

Climate change lawsuit won’t succeed — or help Baltimore County | READER COMMENTARY

By Phil Goldberg

The Baltimore Sun’s editorial favoring climate litigation misses the point (”Baltimore County Council fails a (pretty darn easy) climate change test,” Nov. 29). Before Thanksgiving, the Baltimore County Council started debating a request from a law firm to sue companies that provide oil and gas that families and businesses rely on every day, as part of a national campaign to blame climate change on the energy sector.

A bipartisan group of council members rightly pointed out flaws with the litigation, namely that it will do nothing to solve climate change. The law firm then pulled the request.

An honest dialogue about the lawsuit would have been revealing. It has no merit. The U.S. Supreme Court dismissed an earlier version of these lawsuits in 2011, cautioning that climate litigation raises national and international legislative and regulatory policy matters that cannot be decided by courts.

Nevertheless, two dozen communities around the country have signed up for this second round of lawsuits. There is now a clear track record of what this litigation is about — politics. The litigation is funded by groups with a political agenda: to “raise the price” of fuel and hold “consumers responsible” for climate change. By going to courts, they are trying to avoid public input as well as the checks and balances of the legislative and regulatory processes.

That’s why community and environmental leaders are sounding the alarm. For example, Kathleen Curry, a former Democratic leader in the Colorado legislature, said these lawsuits hurt families and businesses because many people cannot afford higher gas and electric bills.

Annapolis resident Ted Garrish, a former general counsel at the U.S. Department of Energy, explained that legally “it is impossible to point fingers” at any companies because climate change is a global phenomenon.

Read the full column here

RealClearEnergy: All Eyes on SCOTUS With Climate Case on Deck

by Phil Goldberg

When the U.S. Supreme Court reconvenes at the end of this month, it will consider whether to hear a lawsuit that could have significant adverse implications for America’s energy and climate policy over the next decade.  The case was filed by Boulder and other governments in Colorado, and it names Suncor USA and ExxonMobil as defendants. The governments are trying to make the two companies legally liable for climate change by asking their state’s courts to make the companies pay for bridges and other climate-related infrastructure projects in their areas.

If this scenario sounds familiar to Supreme Court watchers, it is.  Last year, the Court heard a nearly identical lawsuit from the City of Baltimore, though that lawsuit named other energy companies as well. The Supreme Court sided with the companies and required the Courts of Appeals to more fully consider whether climate-related claims can be heard in state or federal court. Now, the companies are back, asking the Court to directly answer these questions, namely do claims alleging damages from climate change arise under federal law and, if so, must they be heard in federal court.

Whether and how the Court answers these questions will impact America’s legal policy for the next decade. This lawsuit is part of a coordinated national litigation campaign, with two dozen similar lawsuits around the country—all by state and local governments that name different combinations of companies that sell Americans our energy. All of these lawsuits are packaged as state claims in an effort to sidestep the Supreme Court’s 2011 ruling in American Electric Power v. Connecticut

In AEP, the Court issued a unanimous ruling written by the late Justice Ginsburg that climate litigation raises emissions and energy policy matters that are federal and legislative in nature. The Court explained that deciding how to address climate change is not a liability question for the courts at all. The current lawsuits by Boulder and Baltimore are attempts to circumvent this ruling and convince state courts to award money to local jurisdictions. So, there are important reasons to take this case with respect to defending the Court’s jurisprudence.

From a practical perspective, subjecting American companies to liability for climate change is an ineffective way to address this broad, global challenge. As the Court explained in AEP, climate change is a by-product of modern society and needs to be meaningfully addressed, and judges simply do not have the institutional means to do so. Specifically, they cannot assess and make decisions about the many causes of climate change or factors thatgo into setting national and international policies—including energy affordability for families and businesses and national security interests.

One alarming aspect of these lawsuits is that the architects of this litigation are trying to leverage these inefficiencies to their advantage. They have said that imposing the costs of climate adaption on energy production and use will allow them to get around Congress’s unwillingness to “raise the price” of fuel so the impacts of climate change will “get priced into” the gas and electricity American families and businesses use every day. It is their way of holding “consumers responsible” for climate change. Most families and businesses can hardly afford to pay more at the pump or in electric bills for these lawsuits.

In addition, for those of us focused on solutions, this litigation misses the mark. These lawsuits will not generate any new technologies, but will distract from doing so. They also pit communities against each other, a point more than fifteen state attorneys general made in objecting to this litigation. They do not want the government plaintiffs to use lawsuits as political tools to “export their preferred environmental policies and their corresponding economic effects on to [their] states.” The lawsuits will hurt efforts in their own communities to address climate impacts by limiting their options and draining resources.

Those communities looking for financial assistance to address climate impacts should look to federal and state programs—including in the recent legislation signed by President Biden—that are already making funds available to facilitate real climate action and more resilient communities.

Finally, many national security experts have expressed concern that these lawsuits seek to make only American, Canadian and European energy companies pay for climate adaptation—not OPEC, Russia and other state-owned energy companies. As recent events have demonstrated, this approach directly interferes with efforts to increase domestic energy, support our allies and advance cleaner energy sources. 

At the end of the day, it is likely not a question of if the Supreme Court will hear these cases, but when. It has already taken review of climate litigation twice. Given the importance of the legal and energy issues at stake, the Court should provide guidance now on where these cases should be heard—and whether they are appropriate for courts at all. 

Read the full column here.

Law360: 3 Recent Cases Highlight Public Nuisance Climate Suits’ Flaws

by Phil Goldberg

For years, there has been a largely unsuccessful effort to turn public nuisance into a “super tort” for suing manufacturers over a variety of political, social and environmental issues that are fundamentally legislative or regulatory in nature.

This super tort theory is the legal idea that has been at the heart of the nearly 20-year litigation campaign seeking to blame climate change on energy producers. These cases make headlines, but that does not mean they are based on good law.

Courts across the country have been rightfully skeptical of these new public nuisance claims. Public nuisance has a long history in the U.S., and it has always been about dealing with local matters, such as vagrancy and public access to local land and water — not national or societal issues.[1]

Now we can add federal courts in West Virginia and Illinois, and a state court in Delaware, to the long list of courts rejecting such attempt to expand public nuisance law.

Although the cases in question were not climate-related — they involved different products and situations — they signal the type of ongoing skepticism from the courts toward the super tort theory. They are a harbinger of what to expect if climate cases are heard on the merits of their claims.

In City of Huntington v. AmerisourceBergen Drug, the U.S. District Court for the Southern District of West Virginia in July rejected public nuisance claims that lawful distributors of certain medications should be held responsible when the medications are misused.[2]

In In re: Paraquat Products Liability Litigation, the U.S. District Court for the Southern District of Illinois in February dismissed public nuisance claims against a manufacturer over personal injury claims from a federally approved product used by farmers to protect crops.[3]

And in State of Delaware v. Monsanto Co., the Delaware Superior Court in July dismissed public nuisance claims against a manufacturer when other entities allowed the products it sold to escape into the environment.[4]

Just as in the climate cases, the plaintiffs in all three cases argued that defendants there should pay millions or billions of dollars, because, despite the benefits of their products and the regulatory systems created to manage risks, the companies either knew or could have been aware of potential risks the products posed.

The courts all agreed, though, that manufacturers and others in the stream of commerce are not liable under public nuisance law for unintended consequences or inherent risks associated with downstream use or misuse of beneficial products. The courts made several points that directly correlate to climate litigation.

First, as the federal judge in West Virginia stated, the tort of public nuisance does not apply to the marketing and sale of a legal product — only to unlawful local disturbances and public use matters. Ruling otherwise would be “inconsistent with the history and traditional notions of nuisance.”

The Delaware judge echoed this: “[P]roduct claims are not encompassed within the public nuisance doctrine.”

Second, it does not matter whether the manufacturer was aware of the product’s inherent or downstream risks. As the federal judge in Illinois explained, it is not sufficient to allege the company knew of the dangers but “failed to ‘tackle the problem.'”

Otherwise, as the federal judge in West Virginia stated, this theory could be used “against any product with a known risk of harm, regardless of the benefits conferred on the public from proper use of the product.”

Third, the tort of public nuisance is not about monetary damages, including to deal with the effects of the public nuisance. It is only for stopping the nuisance-causing activity or abating the public nuisance.

In these cases — just as in climate litigation — the plaintiffs are seeking only money, not solutions. As the courts have explained, the general rule is that governments are not permitted to get monetary damages in public nuisance lawsuits.

The federal judge in West Virginia made this point clearly: “Any such monetary award — whether styled as damages or ‘abatement damages’ — is not properly an element of equitable abatement relief.” The federal judge in Illinois similarly held that plaintiffs cannot simply seek money “for their alleged injuries rather than abatement of any true public nuisance.”

Not surprisingly, these were some of the reasons the U.S. Court of Appeals for the Second Circuit gave when it dismissed City of New York v. Chevron Corp., New York City’s climate public nuisance suit, last year.[5] The court said:

Stripped to its essence, then, the question before us is whether a nuisance suit seeking to recover damages for the harms caused by global greenhouse gas emissions may proceed under New York law. Our answer is simple: no.

America’s courts continue to speak loud and clear: Calling something a public nuisance does not make it so. It is time for state and local leaders to stop this repeated effort to sue manufacturers in the face of important societal issues, from climate change to public health.

Identifying solutions to climate change — at both global and local levels — is a legislative and regulatory matter that cannot be decided in the courts. Public officials should drop these lawsuits, and join manufacturers in working toward real solutions to our most pressing shared challenges.

Read the full column here.

National Law Journal: Climate Change Requires Collaboration, Not Courtroom Brawls

by Phil Goldberg

The U.S. Court of Appeals for the Third Circuit is about to hear climate lawsuits by Delaware and the city of Hoboken that could increase energy costs and take climate policy out of the hands of federal lawmakers. These cases are part of an effort by two dozen local and state governments to force energy companies to give them money for local climate impacts. If the lawsuits are successful, Americans, who already face elevated energy prices, will see prices go up even more.

The challenge for each of the governments suing is getting around a decade-old ruling by the U.S. Supreme Court that rejected attempts to impose liability on energy companies for climate change. In that case, American Electric Power v. Connecticut, the court said climate change policy is a federal and regulatory question—not one for the courts.

The Supreme Court understood that liability questions in climate cases are intertwined with national and international policies over the production and sale of energy, as well as emissions from sources around the globe over the past 150 years. The court explained that Congress and federal agencies are uniquely equipped to balance the factors that go into America’s energy policy, including energy independence and affordability, and using state law to determine any of these issues “would be inappropriate.”

The current wave of climate litigation plainly conflicts with these Supreme Court statements. And if these suits were to succeed, the implications would be troubling for American consumers and businesses. For example, these lawsuits could hinder the federal government’s ability to make energy-related decisions critical to our national security—issues that have taken on significant importance in the past few months.

These lawsuits would also lead to a rise in energy prices for American families and businesses. A lawyer representing some of the local governments has said a large part of the reason he and others are pushing these lawsuits is to hold “oil consumers responsible.” That’s code for creating a backdoor penalty on our energy use. They want to make it more expensive for us to put gas in our cars, heat and cool our homes and power our workplaces—even if we can’t afford it.

For their plan to work, the state and local governments crafted their complaints to try to avoid federal courts and hope a state court will ignore the Supreme Court’s caution signs. So they allege the energy companies violated state laws in developing and selling fossil fuels, leading to local climate damages. They have told the federal courts their cases have nothing to do with national or international energy production or carbon emissions.

Their own lawsuits, though, belie these assertions, something that has not escaped notice of federal judges in many of the hearings that have been held so far in this litigation.

For example, a judge sitting in the U.S. Court of Appeals for the Fourth Circuit noted that the climate case brought by Baltimore repeatedly mentioned fossil fuel “production.” He asked Baltimore’s lawyer: “Wouldn’t you be better off just to delete ‘production’ from your complaint?” But the inclusion of “production” is no typographical error. The lawsuits deliberately allege harm from the production and use of fossil fuels.

Similarly, there is no denying these cases are about global emissions. Although lawyers for the cities and states have insisted that their cases are not about fossil fuel emissions at all—again because regulating carbon emissions is the province of the federal government—they also repeatedly say the cases are about how defendants’ conduct has “exacerbated emissions.”

In one telling exchange, a judge on the U.S. Court of Appeals for the Eighth Circuit asked Minnesota’s lawyer: isn’t your entire theory of causation based on interstate carbon emissions? The attorney did everything he could to avoid the word causation, saying, carbon “emissions is the avenue of the source of injury.” Here, avenue is just another word for cause.

At least one federal appellate court has seen through this doublespeak: last year, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of New York City’s climate lawsuit. It said, “we are told that this is merely a local spat about the City’s eroding shoreline, which will have no appreciable effect on national energy or environmental policy. We disagree. Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.”

Ultimately, none of these lawsuits will help in the fight against climate change. There is no suing our way to the future, and pricing gas and electricity out of the reach of many Americans is not viable. Local and state governments should drop the lawsuits and work with the manufacturing community on the critical technologies that will drive the clean energy economy of the future.

Phil Goldberg is a special counsel to the Manufacturers’ Accountability Project and the office managing partner of Shook, Hardy & Bacon in Washington, D.C.

Read the full editorial here.

Capital Gazette Op-Ed: Earth Day should be about renewing call for climate innovations, not litigation

by Phil Goldberg

The theme of Earth Day 2022 is “Invest in Our Planet.” We all — businesses, governments, and citizens — are being called upon to “act boldly,” “innovate broadly” and “implement equitably.”

In today’s sensationalized political and media climate, it’s easy to lose sight of the meaningful work manufacturers are doing to address climate change.

This “act boldly” and “innovate broadly” approach has been working. The cost of wind and solar farms has fallen dramatically while output has soared. Cars, airplanes and factories have all become more efficient. And, over the past decade, manufacturers have increased productivity and reduced greenhouse gas emissions. This is just the beginning.

Instead of investing in these efforts to reduce emissions, some local officials and plaintiffs’ lawyers are engaging in a litigation campaign trying to blame climate change on the companies selling us the oil and gas we use every day. Baltimore was one of the first to file a climate lawsuit, and Annapolis and Anne Arundel County have joined this effort. This litigation, though, will do more harm than good in the fight against climate change.

The U.S. Supreme Court pointed out the problems with these types of lawsuits a decade ago: they try to make courts craft America’s energy policy, which is something the judiciary is ill-equipped to do. Oil and gas are necessary to our everyday lives, and courts do not have the tools to weigh the factors — from making sure energy is affordable for Americans to national security considerations — that must be part of figuring out how to address the changing climate.

Kathleen Curry, a former Democratic leader in the Colorado legislature, recently expressed similar concerns about Boulder’s climate lawsuit and what it means for Colorado families and businesses. “If these lawsuits mean gas will go to $7 or $10 a gallon” — as companies pass the lawsuits’ costs onto consumers — ”many people won’t be able to afford to even drive to work. That’s not a solution that is viable for, or fair to, hard-working Coloradans” — or Marylanders.

There are also national security concerns with these lawsuits. As Curry also pointed out, the lawsuits “target only American, Canadian and European energy companies” and give large state-owned fossil fuel companies in Russian, Saudi Arabia and other non-Western countries a free ride. Why would we sue ourselves? Wouldn’t that make us more dependent on foreign energy and less in control of our energy future?

Finally, and important to this year’s Earth Day themes, these lawsuits will hinder, not advance the effort to “innovate broadly.” As economist Wayne Winegarden wrote in Forbes recently, there is a disconnect between driving massive investment in new energy technologies and suing companies for selling us current energy technologies. The message to investors is: Beware! You will be sued as soon as your new technology is no longer good enough.

Indeed, the federal appellate court that dismissed New York City’s climate lawsuit said the litigation “ignores economic reality.” These lawsuits will also drive energy production to places with less of a commitment to the climate than we and our allies have. Selling us the energy we need simply should not be turned into a liability-inducing event.

Today’s climate litigation is not about investing in our planet. It’s about pointing fingers and playing climate politics. As this year’s Earth Day themes recognized, innovation — not litigation — is the better way to protect our future.

Phil Goldberg is special counsel to the Manufacturers’ Accountability Project and the office managing partner of Shook, Hardy & Bacon, LLP. He resides in Maryland.

Read the full column here.

Pennsylvania Capital-Star: Some cities, states say Big Oil should pay for climate damage

by Alex Brown

In the waning days of 2021, a grass fire broke out in Boulder County, Colorado. Fueled by extreme drought and high winds, the fire swept through the communities of Superior and Louisville. Within hours, it had destroyed more than a thousand structures—making the Marshall Fire the most destructive in the state’s history.

The December fire was an extraordinary event, but perhaps a preview of the new normal under the conditions caused by climate change. Late last month, another fire forced the evacuation of 18,000 residents in and around Boulder. Fortunate winds saved the city from catastrophic damage, but the near-miss—and the timing well outside of the region’s traditional fire season—was a warning sign of what’s to come.

“We’ve already experienced impacts [from climate change], but nowhere near the amount that we’re likely to experience in the coming decades,” said Aaron Brockett, Boulder’s mayor. “We have a lot of work to do to make our community more resilient.”

Boulder leaders are working to reduce fuel loads in the forests and open spaces owned by the city. They’re seeking to make the neighborhoods bordering those lands more fire resilient. They’re hoping to upgrade fire stations and equipment. And they’re planning projects to reduce flood risk from the severe storms that climate change is likely to bring.

That work will cost tens, if not hundreds, of millions of dollars. And local leaders think oil companies should pay for it.

In February, the city and county of Boulder, along with San Miguel County in western Colorado, scored a significant win in their legal fight against ExxonMobil and Suncor energy companies when a federal appeals court ruled that the case would remain in state court.

Local governments earned another win last week when a different federal appeals court ruled that Baltimore’s case against oil companies also belonged in state court.

The decisions were the first under new U.S. Supreme Court guidelines, established last May as part of Baltimore’s climate lawsuit, directing appeals courts to take a more expansive look at oil companies’ arguments that the cases belong in federal court. The rulings have been closely watched by the nearly two dozen states, cities and counties that have filed lawsuits likewise seeking payment from fossil fuel companies for the damages caused by climate change.

Oil companies, with the backing of some other states, have fought to move the cases to federal court, where they think national regulations around drilling, refining, emissions and air quality would invalidate the legal claims against them. The local governments that have sued say their cases rest on Big Oil’s deception about the harm its products would cause, giving them a foothold under state law to seek damages.

The jurisdictional battle, which more federal appeals courts are likely to rule on this year, will have massive implications for whether the climate lawsuits proceed to local jury trials. If they do, it would set up a high-stakes showdown over the still uncertain territory of legal accountability for climate change—with billions of dollars on the line.

Several states and industry groups have weighed in to support the oil companies, arguing that rulings against them could devastate the industry and make energy more expensive.

“If it’s in federal court, [the oil companies] win,” said Hannah Wiseman, a professor of law at Penn State University’s College of Earth and Mineral Sciences. “These cities are wise to the precedent, and they’ve made clear they’re raising issues of state tort law and not arguing for federal climate policy. They’re doing a good job of that, and it’s hard to predict how the courts will ultimately come out.”

Seeking Accountability

The governments suing the oil industry come from regions facing sea-level rise, wildfires, drought, flooding and severe weather. They cite extensive news reporting—including investigations from the Los Angeles TimesInside Climate News and The Guardian—that shows oil companies understood the dangers of climate change decades ago but led campaigns to undermine the scientific consensus that their products were contributing to a growing crisis.

“By the ‘70s, [oil companies] knew that a lack of action on moving away from fossil fuels would cause dramatic changes to the climate,” Brockett said. “Meanwhile, the burden for repairing the damage falls on local communities, and we don’t have the financial wherewithal to bear that burden.”

Backers of the lawsuits compare them to landmark cases against tobacco and opioid manufacturers, which resulted in multibillion-dollar settlements over the public health crises fueled by their products and business practices.

“They’re just saying, ‘You violated state law, because you deceived us about what you knew about your products in order to sell more of them,’” said Bob Percival, director of the University of Maryland’s environmental law program. “The oil companies are desperate to avoid a public trial that would focus attention on what they knew, when they knew it and how they tried to deceive the public.”

The cases mark an unprecedented attempt to assert legal accountability for climate change, a crisis with worldwide causes and consequences.

“The fact that it’s a global phenomenon is obviously the thing that distinguishes these tort actions from any case we’ve seen before,” said Pat Parenteau, a professor of environmental law at Vermont Law School, who also serves in an informal advisory group that supports some of the governments’ cases.

The oil companies named in the cases argue that federal energy and pollution policies should preempt state claims. ExxonMobil and Suncor have contended in court filings in the Colorado lawsuit that they followed federal regulations on drilling, refining and distributing fossil fuels. The companies also assert that the lawsuits are backdoor attempts to establish climate policy through the courts, since Congress has failed to take meaningful action.

“On jurisdictional matters, climate change is a national issue that requires a federal solution, not a patchwork of various state-based rulings,” said William Allison, spokesperson for Energy In Depth, a research and public outreach project of the Independent Petroleum Association of America, a trade group.

Major companies facing the lawsuits—BP, Chevron, ExxonMobil, Suncor, the American Petroleum Institute, Koch Industries and Shell—did not respond to Stateline’s requests for comment.

Supporters of the lawsuits say the cases aren’t about enforcing or enacting policies to reduce carbon emissions, but rather about seeking accountability for what they say are decades of dishonesty that contributed to political inaction on climate change.

State or Federal Court?

Many of the cases have been through years of legal wrangling, and the current battle centers on whether they should be heard in state or federal court. Those backing the lawsuits say local juries should hear the cases.

“These cases, which are fundamentally about local injuries to communities, should be heard in state court,” said Marco Simons, general counsel with EarthRights International, which is representing the Colorado communities. “Our cases are not about stopping climate change writ large or broader policy issues. They’re about paying for damages suffered by these communities.”

But some states have weighed in to argue that the cases belong in federal court. For example, Indiana has filed multiple amicus briefs in favor of oil companies, including a recent filing with 13 states in the case brought by Baltimore.

“These claims are displaced by the existing federal regulatory scheme, which tells us the limits in advance on extraction, refinement and use of fossil fuels,” Tom Fisher, Indiana’s solicitor general, said in an interview. “If a court in California decides that Exxon and Chevron are responsible under public nuisance theory for causing global climate change and that requires an injunction to limit their output, that’s obviously going to affect Indiana and other states.”

Some business groups, including the Manufacturers’ Accountability Project, an arm of the National Association of Manufacturers that fights climate litigation, also have urged federal courts to take jurisdiction.

“[C]limate policy is federal and regulatory in nature—not one that can be decided by state courts,” Phil Goldberg, the project’s special counsel, wrote in an email to Stateline.

The National League of Cities, which advocates for municipal governments, takes a different view.

“This is really about federalism principles and where cases should be heard if there’s a local harm,” said Carolyn Berndt, the group’s legislative director for sustainability. “The local harm in this case happens to be climate change, and the right court for this is state court.”

Although federal judges mostly have ruled that the cases belong in state court, a U.S. Supreme Court ruling last May forced federal appeals courts to reevaluate those decisions because they hadn’t considered all the energy companies’ arguments.

This February, the 10th U.S. Circuit Court of Appeals ruled that the case filed by the Colorado municipalities would remain in state court, the first decision under the new Supreme Court guidelines. Last week, the 4th Circuit ruled that Baltimore’s case against oil companies also belonged in state court.

Several other circuit courts have yet to rule under the new guidelines.

“This is an important year,” said Richard Wiles, president of the Center for Climate Integrity, a nonprofit that supports communities that are taking on oil companies. “If these cases end up in state court, that’s a really good sign. If one of the circuits goes [the oil companies’] way, that could create grounds for an appeal to the Supreme Court.”

Moving Ahead

While several federal appeals court decisions await, some cases are moving ahead. Last month, a Hawaii Circuit Court judge ruled that a lawsuit filed by Honolulu could proceed to trial even as the jurisdictional issues are still being settled. The case could be the first to reach the discovery phase, an outcome advocates say energy companies have fought tooth-and-nail to avoid.

“They absolutely do not want it to get that far,” said Tommy Waters, chair of the Honolulu City Council. “What are they hiding?”

Waters said Honolulu is facing billions in damages from sea-level rise alone, and it also requires expensive upgrades to its stormwater infrastructure to handle extreme precipitation.

“Our roads are falling into the ocean, homes are falling into the ocean, our beaches are disappearing,” he said. “We simply can’t afford it.”

Another case, filed by the state of Massachusetts against ExxonMobil, also is moving toward discovery. That lawsuit, like most of the cases brought by state attorneys general, focuses on consumer fraud violations. Such lawsuits seek civil penalties, rather than restitution for the costs of climate mitigation.

‘They All Go Bankrupt’

If the local governments prove their cases against the oil companies, the implications would be massive. Courts may have to determine the extent to which a given company is responsible for the climate damages in a particular region.

“Science has made great strides in being able to attribute what percentage of temperature rise and what impacts are associated with a particular company’s emissions,” said Percival, the University of Maryland professor. “There are now some really distinguished experts who can testify about how to apportion the harm.”

And if some cities and counties are successful, advocates expect a deluge of others to file suits.

“If these cases are ruled in favor of the plaintiffs, then every city in the country could follow suit,” said Wiles of the Center for Climate Integrity. “There isn’t a city budget out there that couldn’t use help from the oil companies for their climate-driven adaptation costs.”

Backers of the lawsuits acknowledge that the costs of dealing with climate change nationwide are far more than the oil companies could bear.

“If these cases all go to their logical extreme, [the oil companies] all go bankrupt,” said Parenteau, the Vermont Law School professor. “They should.”

Others argue that outcome is why the cases should be dropped.

“We choose to use energy, which is mostly fossil fuel, because it makes our lives better,” said Wayne Winegarden, a senior fellow at the Pacific Research Institute, a California-based think tank that advocates for free-market principles and is supported in part by oil industry-affiliated groups. “Imagine they win $100 billion in one of the suits. That becomes a per-barrel tax that gets passed on to consumers.”

Read the full article here.

E&E News: Court sides with Calif. cities in climate litigation fight

by Lesley Clark

A federal appeals court delivered a victory yesterday to several California cities and counties that are suing the oil and gas industry for the costs of climate change, with a ruling that the case should be heard in state court.

In a unanimous ruling, the 9th U.S. Circuit Court of Appeals rejected arguments from the industry to move the climate lawsuit — led by California’s San Mateo County — to federal court.

“Even if the complaints raise federal policy issues that are national and international in scope, implicate foreign affairs and negotiations with other nations, and require uniform standards, they do not ‘raise a substantial question of federal law for the purpose of determining whether there is jurisdiction,’” Judge Sandra Ikuta wrote for the court.

The ruling is the third win for local governments, following a Supreme Court decision last May that sent a host of climate liability cases back to the appellate level. Federal appeals courts in Baltimore earlier this month and in Colorado in February sided with the challengers, agreeing to keep the lawsuits before the state bench (Climatewire, April 8).

Ikuta, who was appointed by former President George W. Bush, and the two other judges rejected each of the arguments that the oil and gas companies have raised in a bid to move a flurry of similar cases to federal courts, where the companies believe they face better odds.

That included a pitch that the cases belong in federal court because some oil extraction occurs in “federal enclaves.”

The local governments, Ikuta wrote, are not saying that their claims are based on wrongful acts that took place on federal property.

“Rather,” she wrote, “their complaint raises state-law claims arising from injuries to real property and infrastructure within their local jurisdictions.”

For example, she wrote that San Mateo’s alleged injuries stem from a trespass claim —that the companies’ petroleum activities “ultimately led to a sea-level rise that caused water to enter San Mateo property in violation of trespass law and caused various damages and nuisances there, including the destruction of real property and infrastructure within its borders.”

Chevron Corp., the lead defendant in the case, said it “respectfully disagrees” with the decision.

“Plaintiffs’ claims are based on allegations about worldwide carbon emissions and address global climate change — national and international issues that can be governed only by federal, not state, law,” Chevron spokesperson Braden Reddall said in a statement. “Although the court has decided that plaintiffs’ claims for now can proceed past this preliminary stage, Chevron looks forward to additional challenges that should put an early end to this meritless lawsuit.”

The judges also turned down the companies’ attempt to claim federal jurisdiction by citing the Outer Continental Shelf Lands Act, saying it’s unrelated to the alleged damages.

“The counties’ claims focus on the defective nature of the energy companies’ fossil fuel products, the energy companies’ knowledge and awareness of the harmful effects of those products, and their ‘concerted campaign’ to prevent the public from recognizing those dangers,” the opinion says. “These allegations do not refer to actions taken on the Outer Continental Shelf.”

Ikuta was joined in the opinion by Judges Morgan Christen, an Obama appointee, and Kenneth Lee, a Trump appointee.

The lawsuit is a consolidation of cases brought nearly five years ago by San Mateo, Marin and Santa Cruz counties, as well as the cities of Imperial Beach, Richmond and Santa Cruz (Climatewire, July 18, 2017).

The California cases are among an array of lawsuits filed by mostly Democratic-led states, cities and counties that are suing the industry, accusing it of misleading consumers about the dangers of burning fossils.

Advocates for the climate litigation welcomed the ruling.

“This is another big, but not surprising, loss for the oil and gas majors,” said Richard Wiles, president of the Center for Climate Integrity. “Three federal appeals courts have now agreed that their arguments to escape accountability in state court do not pass muster.”

He called it a “major victory” for California communities “seeking their day in court against corporate polluters that spent decades lying about their products’ role in fueling the climate crisis.”

But Phil Goldberg, special counsel to the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the litigation, noted that the judges wrote that the case raises what is “no doubt an important policy question.”

That shows, he said, that there is “no escaping that the nature of climate change, this litigation and the remedies being sought are all inherently beyond the scope of any state court.”

Goldberg said he expected the climate liability cases to eventually end up at the Supreme Court.

“It makes no sense to spend years litigating climate cases in state courts when it is clear that climate change is global in nature, has many causes and requires broad-based policy solutions,” he said.

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E&E News: Lawyers use Baltimore climate win to argue for state court

by Lesley Clark

Municipalities looking to hold oil and gas companies accountable for climate impacts are pointing to a ruling in Baltimore’s high-profile liability case to bolster their argument that the fights should proceed in state court.

In briefs filed last week, a lawyer for several California counties and Washington, D.C.’s top legal officer cited the April 7 ruling from the 4th U.S. Circuit Court of Appeals, which rejected every argument industry lawyers presented to move Baltimore’s case to federal court, where oil and gas companies may face better odds.

The 4th Circuit’s decision follows a Supreme Court ruling last year that said federal appeals courts could consider a broader set of arguments for challenging remand orders that had sent liability cases like Baltimore’s back to the state courts where they were originally filed.

In the ruling, three 4th Circuit judges unanimously and “resoundingly” agreed with Baltimore that the case did not raise federal issues (Climatewire, April 8).

The 4th Circuit said state court was the right place for Baltimore’s claims of climate deception, “rejecting many of the same removal arguments advanced by defendants here,” wrote D.C. Attorney General Karl Racine (D) in a filing last week in the U.S. District Court for the District of Columbia.

Attorneys for San Mateo County, Calif., also cited the 4th Circuit ruling in their own case seeking oil industry compensation for wildfires, flooding and other effects of a warming planet. There are dozens of similar cases playing out in courts across the country.

Racine in 2020 sued four oil companies for “systematically and intentionally” misleading consumers about the effects of fossil fuels on climate change (Climatewire, June 29, 2020).

In his brief last week, Racine pointed to five arguments that the 4th Circuit rejected, including the federal officer removal statute, which says cases involving federal officials generally belong in federal court.

The 4th Circuit ruling found that “the nexus between the defendants’ deceptive marketing and any government-controlled fossil-fuel production was ‘too tenuous to support removal,’“ Racine wrote.

The Baltimore ruling was the second win for states, cities and counties following the Supreme Court’s decision last May that sent a host of climate liability cases back to federal appellate judges who had previously largely agreed that the lawsuits belonged in state courts. The 10th U.S. Circuit Court of Appeals in February agreed to keep a Colorado lawsuit before a state bench — even after considering additional industry arguments for federal jurisdiction (Climatewire, Feb. 9).

The question of which courts should hear climate liability cases has stymied action on dozens of lawsuits by municipalities looking to force the oil and gas industry to pay for producing planet-warming emissions. Most of the suits were filed in state courts, but industry lawyers have sought to move the cases to federal benches, where judges could find that the municipalities’ claims are preempted by the Clean Air Act.

“At the end of the day, given that there’s going to be a broad look at these issues from a number of circuits, one would expect that the Supreme Court would probably want to weigh in again and make sure that everyone is aligned,” said Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the litigation.

He added that “it shouldn’t be lost” that climate liability challengers have chosen courts that appear likely to favor their arguments.

“They’re trying to cherry-pick the circuits they think they’re going to get the best results from,” Goldberg said, noting, for example, that no similar lawsuits have been filed in the historically conservative 5th U.S. Circuit Court of Appeals, which handles cases in Louisiana, Mississippi and Texas.

“If you had cases in other jurisdictions, they might look very different, which is what the Supreme Court has to consider,” he said.

Racine in February submitted the Colorado opinion to the D.C. District Court, writing that the 10th Circuit had “analyzed and rejected many of the same removal theories.”

The industry in a March filing countered that “contrary” to Racine’s assertions, the Colorado case does not undermine federal jurisdiction and that the 10th Circuit had “erred by rejecting removal jurisdiction based on the application of federal common law.”

Baltimore’s lawsuit is far from settled: Exxon Mobil Corp. on Friday asked for a two-week extension to file a petition for the case to be heard by the full slate of 4th Circuit judges. If the request is granted, Exxon would have until May 5 to file for rehearing.

“This appeal encompasses complex issues of federal jurisdiction including whether claims seeking redress for harms allegedly caused by global climate change necessarily arise under federal common law,” the filing notes.

Read the full article here.