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SCOTUS to Determine Fate of Climate Change Suits in State Courts

January 18, 2021 Tony Mauro

The U.S. Supreme Court will hear arguments Jan. 19 in a climate change case that has drawn strong interest from the oil and gas industry in its ongoing efforts to keep climate litigation in federal courts, rather than state and local courts.

Titled BP v. Mayor and City Council of Baltimore, the case was originally brought in state court against 21 oil companies, claiming that the city should be compensated because emissions have caused major damages including flooding. Several other state and municipal governments have launched similar lawsuits.

The case may be argued before seven justices, rather than the usual nine, because two justices hold stock in energy companies that are parties in the case. Justice Samuel Alito Jr. has already recused, likely because his most recent financial disclosure form indicates he owns up to $50,000 in stock of ConocoPhillips and $50,000 in Phillips 66. Justice Amy Coney Barrett included Shell Oil Company in a recusal list she submitted during her confirmation hearing in September, but she has not yet recused herself. Her father Michael Coney was an attorney for Shell for nearly three decades, according to The New Yorker magazine.

The question presented in the case is highly procedural and does not even mention climate change. Rather, it asks whether federal appellate courts can review lower court decisions to remand cases to state courts in light of an obscure federal statute that allows review when “federal officers” are involved. Because the oil and gas industry has a multitude of connections to federal personnel when it comes to government leases, approval of exploration plans and other forms of regulation, the case is of keen industry interest.

In a brief in support of BP, the American Petroleum Institute underscores “the extensive federal involvement in the production of oil, gasoline, natural gas, and other petroleum products. API’s members have a long history of contracting with the federal government to serve the    government’s priorities, step into the shoes of the government in rendering services, and provide the government with bespoke products that meet exacting specifications.”    

API also asserts that Baltimore’s claim is “sweeping in geography – targeting emissions that cross interstate and international boundaries – [so that] it can only sound in federal law.”

As with other large companies, the energy industry would rather fight climate change lawsuits in federal courts because they may be more favorably inclined, while state courts have hometown interests and are bound by a patchwork of statutes and precedents.

A brief in support of Baltimore tells the high court that numerous neutral-sounding advocacy groups supporting BP with amicus briefs have in fact been funded with large amounts of “dark money” by oil and gas companies to bolster the chances that Baltimore will lose.

The brief lists the U.S. Chamber of Commerce, the National Association of Manufacturers, the   Washington Legal Foundation and the Atlantic Legal Foundation. “All of these amici are funded by or connected to the fossil fuel industry,” the brief asserts. “The full extent to which they are also directed by the fossil fuel industry is unknown.”

Dallas attorney Gerson Smoger authored the brief for U.S. senators Sheldon Whitehouse, Ben Cardin, Richard Blumenthal, Elizabeth Warren, Edward Markey and Chris Van Hollen. For several years, Whitehouse has advocated for requiring the Supreme Court to be more transparent about the funding behind amicus briefs.

Smoger, who practices injury law and litigates on behalf of plaintiffs and liberal causes, said he has known Whitehouse for a long time and wrote the brief pro bono with input from the senator. Smoger said it was important to make the point about “dark money” flowing from energy companies into litigation because “you can’t be sure that jurists know the breadth of the real world.”

States are split in the BP case, with some defending climate-change litigation at the state level, while others approve of removing cases to federal court. Texas Attorney General Ken Paxton joined a brief stating that “Baltimore’s common-law public-nuisance claim must be governed by federal common-law rules of decision articulated by federal courts.” The Trump justice department also sided with the petroleum companies.

Another brief, led by New York state, asserted that federalism is at stake and that states “have a compelling interest in protecting the ability of all states to enforce their own laws in their own courts.” 

Arguing on behalf of BP is veteran advocate Kannon Shanmugam, partner at Paul, Weiss, Rifkind, Wharton & Garrison in Washington, D.C. Assistant to the U.S. Solicitor General Brinton Lucas will represent the United States, and Victor Sher of Sher Edling in San Francisco will speak for Baltimore. 

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