Nov 17, 2020 - Energy & Environment

Big Oil presses Supreme Court on litigation venues for climate change lawsuits

Illustration: Aïda Amer/Axios
Illustration: Aïda Amer/Axios

A bunch of huge oil companies told the Supreme Court in a new brief that state and local climate lawsuits against them belong in the federal court system.

Why it matters: The brief addresses the city of Baltimore's litigation seeking damages for climate-related harms — but it's relevant to roughly a dozen similar lawsuits nationwide that plaintiffs want litigated in state courts.

What they're saying: Lawyers for BP, Chevron, Exxon, Shell and others say Baltimore is seeking damages based on interstate and international emissions over many decades.

  • "Those claims fall squarely within the long line of cases holding that federal common law governs claims seeking redress for interstate air and water pollution," they write.
  • They argue the cases address "federal interest in setting domestic and foreign policy on matters involving energy, the environment, and the economy."

The intrigue: The procedural case, which SCOTUS agreed to take last month, doesn't directly tackle the substance of damage claims from cities and states.

  • Instead it turns on technical questions about defendants' ability to challenge decisions that sent cases back to state courts.
  • But that's super important to future battles over the substance!
  • Bloomberg Law's Ellen Gilmer points out that "federal courts are seen as more favorable to industry defendants."

What we're watching: Moves by the incoming Biden administration.

  • UCLA law professor Ann Carlson, who consults pro bono with plaintiffs suing oil companies, notes that the Justice Department has sided with the industry defendants on jurisdictional questions.
  • "The Trump Administration was actively supporting the oil company arguments in court," Carlson said via email.
  • "A Biden DOJ could (and in my view likely would) back away from these arguments and could even support the municipal and state plaintiffs."
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