Email Icon Twitter Icon Facebook Icon Youtube Icon

E&E News: Baltimore, Big Oil to square off tomorrow in court

Attorneys for Baltimore and fossil fuel interests are scheduled to face off tomorrow in a closely watched climate litigation case that could signal which courts may ultimately hear allegations that the oil and gas industry misled the public about the dangers of global warming.

The oral arguments before a Virginia appeals court will be the first since a Supreme Court ruling in May found that appellate judges could consider a broader range of factors when deciding whether liability lawsuits should be heard in state or federal court (Greenwire, May 24, 2021).

The procedural ruling in Mayor and City Council of Baltimore v. BP PLC, was seen as a win for the companies, who argue that energy production is a federal issue and see the federal courts as a friendlier venue.

Baltimore, which originally filed its climate liability lawsuit against BP, Exxon Mobil Corp. and 24 other oil companies in state court in 2018, will argue that the cases — which seek damages for the costs of dealing with climate change effects such as sea-level rise and flooding — should be heard at the state level.

The outcome could influence other cases; nine similar climate litigation cases were sent back to the appellate level after the Supreme Court ruling. The 9th U.S. Circuit Court of Appeals in Hawaii is scheduled to hold arguments Feb. 18 in a similar case (Climatewire, Jan. 13).

“Judges look at other judges’ work,” said Georgetown Law professor William Buzbee. “Each time a court begins to explore and clarify what is tenable and what isn’t, it shifts the playing field, it narrows what the cases are about and begins to both illuminate arguments and introduce others.”

Attorneys watching the case suggested the companies are looking at the case as a way to convince the Supreme Court to wade into the merits of climate litigation.

“This is an important case,” said Bob Percival, director of the University of Maryland’s environmental law program. “I don’t think the companies realistically think they’re going to win … but what they’re hoping is to set up a vehicle to go to the Supreme Court and say ‘Now, you can be really aggressive and preempt all climate litigation.’”

Percival noted the high court last May made it clear that it was not accepting the industry’s invitation to decide the case on the merits.

“They want to get an activist Supreme Court to wipe out the biggest headache facing these oil companies, they desperately want to avoid a trial that would expose to the public what they knew about climate change,” he said.

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the climate liability litigation, said the companies will argue that addressing climate change requires a coordinated federal approach.

“These are federal policy issues, and they need to be heard at the federal level and decided at the federal level,” Goldberg said. “It should not be decided by individual state judges on a state-by-state basis.”

In the association’s friend of the court brief filed in August, it argued that to resolve the various state and municipal climate change claims, state courts would need to “create new rules governing the international production, sale, promotion, and use of fossil fuels.”

That, the association said, would “undermine national energy objectives, including federal efforts on the climate, energy independence, the stability of the electric grid, and energy affordability.”

Read the full article here.

Washington Examiner: No one is above the law, not even the government

The D.C. Council this month passed legislation to allow the District of Columbia’s attorney general to sue individuals and businesses for political reasons without accountability. It did so under the “emergency” powers of the district, avoiding the checks and balances of the regular legislative process. This misuse of government power is unprecedented, undemocratic, and unnerving.

The legislation in question exempts the district from “anti-SLAPP” laws, which protect people from being sued in an effort to intimidate them from engaging in public policy debates. SLAPP stands for “strategic lawsuits against public participation,” and anti-SLAPP laws are widely supported by the American Civil Liberties Union, media organizations, and others as core safeguards protecting free speech.

So what is this all about? Climate change politics.

In a letter to the council, the attorney general said he wants to be exempt from anti-SLAPP accountability in order to maintain his lawsuit against energy manufacturers over their involvement in the climate change debate. Whatever one’s political persuasion or view on climate and energy, this litigation and the anti-SLAPP exemption are horrible ideas.

This litigation is not about whether climate change is a serious problem. It is. The only path forward is to innovate new ways for the world to source and use energy so it can do so sustainably.

However, developing such climate policies has proven difficult; they often present complex problems rife with regional and political differences. After all, they affect basic aspects of all of our lives: how we heat and cool our homes, fuel our cars, power our workplaces, and so much more. It is frustrating that partisan politics has paralyzed Washington over the past few years on lots of topics, let alone on critical, complicated issues such as climate change.

Scapegoating energy companies for Congress’s dysfunction, though, is no way to make climate policy, even if it makes for good politics in some circles. The Supreme Court already said so in response to a previous attempt at this litigation. In 2011, in a unanimous opinion written by Justice Ruth Bader Ginsburg, the court said balancing the competing interests involved in energy policy, including affordability, energy independence, and climate, is something only Congress can do.

Read the full op-ed here.

New York Daily News Op-ed: New York City’s climate lawsuit fixation

There is an old Albert Einstein saying that insanity is doing the same thing over and over again and expecting different results. Welcome to New York City’s never-ending attempt to sue and blame corporations for climate change. With new leadership in Gracie Mansion, it’s time to break this litigation insanity.

Earlier this year, outgoing Mayor de Blasio grabbed headlines when he announced the city was suing energy companies over climate change. This case is the city’s third climate lawsuit in the past 20 years — all based on variations of the fact that energy use emits carbon dioxide.

We all know climate change is a serious problem. It is a byproduct of modern society. Electrification, refrigerating food and cooling and heating homes were some of the greatest human health developments of the last century.

How we achieved those advancements in the first place is not how we are maintain them in the future. The only way to tackle climate change is to innovate new technologies that will allow us to source and use energy sustainably, among many other things.

The mayor’s lawsuits will do nothing to aid this transition or solve climate change. The previous lawsuits failed for good reason. The first was filed in 2004 by then-New York City Mayor Bloomberg. He joined several states in suing the nation’s major electric companies to try to get a court order against their operations.

The Supreme Court in 2011 unanimously rejected this case. Justice Ruth Bader Ginsburg, writing for the court, said judges should not get involved in setting national climate policy. Climate change is an important issue, and Congress and the Environmental Protection Agency are “better equipped to do the job than individual district judges issuing ad hoc, case-by-case” decisions.

The city’s response? File more climate lawsuits — and get others to do the same. In 2012, the architects behind the city’s litigation put out a report saying they still believed “the courts offer the best current hope” for imposing their political agenda, which includes a carbon penalty. At a 2016 meeting in New York City, they said litigation also gives them a platform for creating a “scandal.”

New York then became the center of this litigation campaign. The state filed a lawsuit intended to drive the vilification of energy manufacturers. De Blasio filed the city’s second climate lawsuit, this time targeting energy manufacturers and saying they should have to pay billions of dollars to the city.

Read the full op-ed here.

The Oregonian Letter: Innovate, don’t litigate

Events all around us make clear that we are at a crossroads on climate change. How we choose to address this crisis will define our generation.

Electrification — from refrigeration to heating homes to the information age — has fueled the greatest health and standard of living advancements in history. But how we did these things in the past is not how we are going to in the future.

The only way to fight climate change globally and locally is what Oregonians excel at: coming together and innovating. We need to invent ways to use and source energy sustainably.

Yet some prefer a less-celebrated American tradition: litigation (“Oregon should make polluters pay for a broken climate,” Aug. 4). They want to sue energy manufacturers for “causing” climate change. Oregon has wisely resisted this effort. Pointing fingers is easy, but we cannot litigate away climate change.

Read the full letter here.

Portland Press Herald Letter: Suing manufacturers won’t mitigate climate change

University of Maine Law School professor Anthony Moffa’s heart is in the right place in urging action on climate change (Maine Voices, July 27), but suing manufacturers won’t help and is counterproductive. What we need for this shared challenge is an all-in, inclusive approach.

Trying to blame climate change on energy companies started 20 years ago. In 2011, the Supreme Court threw out such a suit by Vermont, Connecticut and other states. As Justice Ruth Bader Ginsburg explained in the opinion, courts are not the place to set national energy policy.

Climate change is a byproduct of modern life. The challenge is figuring out how to provide us with energy we need to heat our homes, drive our cars and power our workplaces without impacting the climate. Innovation in sourcing and using energy is the only solution.

Litigation would undermine these efforts, tying the hands of national policymakers. Attorneys in this litigation have acknowledged their true goal is to use courts to impose a penalty on energy use regardless of the cost to families and businesses. That’s the last thing Maine needs.

Read the full letter here.

Newsweek Op-ed: Americans Need Solutions on Climate Change, Not Finger Pointing and Ineffective Lawsuits

National lawmakers, companies and environmental groups are now engaging in important discussions over how the United States, and ultimately the planet, can reach our climate goals. The most important task is figuring out how to develop the technologies we need to source and use energy much more efficiently so the world’s energy use will have a net zero impact on the climate. It is a mammoth undertaking requiring a collaborative “all in” approach.

Some people, though, are stuck in the past. Rather than join this solution-based effort, they are waging a 20-year old campaign to blame climate change on energy manufacturers. Scapegoating energy companies may make for good politics in some circles, but climate change is no more their fault than ours. We need energy to turn on our lights, fuel our cars, power our workplaces and produce goods. The challenge is figuring how to sustain modern life and the climate.

One of the problems with this litigation approach is that it will hinder the ability of our national leaders to lead on climate. As the architects of the litigation campaign have said, they are trying to go state-by-state to get local judges to circumvent Congress and “raise the price” of energy. Their ultimate goal is for judges to impose a back-door penalty on all of our energy use. In their words, “holding oil companies responsible is to hold oil consumers responsible.”

Read the full op-ed here.

Boston Herald Op-ed: Innovation, not litigation can protect Mass. from climate change

The fight against climate change is a critical challenge of our time. To be successful, we must work together to develop and enact meaningful solutions. Some elected officials, including in Massachusetts, who could really help this effort, have chosen a different path. Instead of fighting climate change, they are engaged in a campaign of casting blame and political partisanship.

Since 2017, Massachusetts and a couple dozen of local and state governments have teamed with plaintiffs’ lawyers and private foundations to sue energy manufacturers, seeking to blame them for the impacts of climate change. But, as most people understand, climate change is a global problem to which everyone—not just a handful of companies—contributes.

As proponents of this litigation have admitted, this litigation campaign will do nothing to address climate change. What it will do, though, is undermine solutions-oriented efforts. The manufacturing community is working hard to develop the innovative new technologies that can allow us to source and use energy much more efficiently so that we can significantly reduce GHG emissions.

This approach is working. The cost of wind and solar farms has fallen dramatically while output has soared. Cars, airplanes and factories have all become more efficient. This is just the beginning. Every major company— including traditional energy manufacturers — understands that climate change is a by-product of energy use, as well as other aspects of modern society, and is actively engaged in climate solutions.

Read the full op-ed here.

Duluth News Tribune Op-Ed: Innovation, not baseless litigation, the right path to climate solutions

Climate change is a byproduct of modern society. Energy production allows us all to turn on our lights, heat our homes, power our workplaces, and produce the goods we rely upon for our daily lives. Most major companies — including traditional energy manufacturers — understand these facts and are now actively driving climate solutions. Rather than join this effective and inclusive approach, some prefer to make this issue political, look backward, and point fingers. They advocate lawsuits against energy manufacturers for “causing” climate change. Unfortunately, Minnesota has decided to join this litigation campaign, filing a lawsuit in 2020 against several energy manufacturers and a national trade association (“Ellison files lawsuit against fossil fuel giants for ‘campaign of deception’ on climate change,” June 24). This litigation blame game is a counterproductive distraction. It is also expensive for every person, family, and business. If these lawsuits are successful, each person’s energy bills will go up by hundreds, if not thousands, of dollars each year. Many people cannot afford these costs, particularly when even the lawyers and politicians behind these lawsuits fully acknowledge the litigation will do nothing to solve climate change.

Read the full article here.

Colorado Sun Op-Ed: Boulder’s climate lawsuit would be costly for consumers

Climate change is a pressing challenge shared by every person, business and government around the world. How we choose to address this crisis — whether we unite behind a common purpose or let it become yet one more pawn in the politics of division — will define our generation and our success.

The common-purpose approach happens to be what America has always excelled at: innovation. If we are going to overcome climate change, we need our elected and businesses leaders to focus like a laser on developing the technologies we need to protect people and our planet. 

The good news is that this approach is already working. The cost of wind and solar has fallen over the past decade while output has soared. Cars, airplanes and factories have become more efficient. 

Manufacturers in America, which need energy to make products, have reduced the carbon footprint of the things they make by 21% over the past decade while contributing 18% more value to the American economy.

Unfortunately, the city of Boulder, along with Boulder County and San Miguel County, chose the other path, filing a lawsuit seeking to absolve themselves and blame others for this global problem. 

Read the full op-ed here.

Boulder Daily Camera: Appeal in Boulder climate change lawsuit in hands of 10th Circuit panel

In oral arguments presented by telephone due to the coronavirus pandemic, the next chapter in the city of Boulder and Boulder County’s lawsuit against several fossil fuel companies seeking compensation for the cost of combating the effects of climate change played out before the United States 10th Circuit Court of Appeals in Denver this week.

Kevin Hannon, a Denver-based attorney representing the Boulder governments, and the third plaintiff to the suit, San Miguel County, said arguments were presented in about 35 minutes Wednesday to a three-judge panel of the 10th Circuit. Under appeal by the corporate defendants in the case is the ruling in September by U.S. District Court Judge William J. Martinez, which sent the matter back to Boulder District Court, where it was originally filed in April 2018.

The defendants in the case, Exxon Mobil Corporation, Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Suncor Energy Inc., had previously successfully moved in June 2018 to have the venue switched from state court in Boulder to federal court; federal courts have proved more favorable ground for oil and gas companies in some similar cases elsewhere in the U.S. The Boulder/San Miguel case is the first climate change lawsuit seeking to hold the extraction industries accountable for the cost of coping with climate change from a landlocked state.

The Boulder climate change case was heard in just the second day of the justices’ handling their docket by telephone.

Arguments on behalf of the city and two counties were made by Rick Herz, senior litigation attorney for Washington, D.C.-based EarthRights International. Marco Simons, that organization’s general counsel, was listening in on the arguments, and said on Thursday that much of the debate was around whether the 10th Circuit could even properly hear arguments over venue, at this point. Simons maintained that litigants only have “a very limited ability to appeal, from orders sending a case back to state court.”

Simons said the companies also argued “It should be in federal court because, in their view, matters concerning climate change implicate lots of federal policies and concerns, and therefore they should be in federal court. And in our view, that’s just, first of all, not true. But second of all, that’s not enough for federal jurisdiction because of the implications for climate policy that happen at the state level every day, without any problem.

“State courts commonly hear all kinds of claims that may have national or even international implications that concern nationwide practices or global practices. And that just does not qualify them for federal” court. He cited, as one example, litigation concerning the opioid epidemic, which has ravaged many parts of the country, that has occurred in state courts.

In support of the defendants, Phil Goldberg, Special Counsel to the Manufacturer’s Accountability Project, said in a statement, “The most telling moment from (Wednesday’s) climate litigation hearing in the Tenth Circuit is when the lawyer for Boulder County acknowledged that this lawsuit was about going after the worldwide sales ‘across the entire enterprises’ of energy manufacturers.

“Trying to regulate worldwide sales of energy through tort liability is not the role of the courts or state law. Selling Coloradans the energy needed to power their homes, businesses and communities is not unlawful. There is no doubt that we need to mitigate global climate change, but scapegoating energy manufacturers and using state tort law for this shared global challenge is baseless and not productive.”

Goldberg said that if Boulder officials “really want to do something about climate change, rather than just try to score local political points, they should work with manufacturers on energy innovations. Innovation and collaboration, not litigation, is the only way to make a real difference for Colorado in the fight against global climate change.”

Hannon said it is not known when the appellate panel will rule on the arguments it heard Wednesday. Simons suggested a window as broad as between “two weeks to 12 months” could be possible.

The full article can be read here.