By Matthew Vadum
Energy companies are urging the Supreme Court to keep a Biden administration-backed environmentalist lawsuit accusing the industry of accelerating climate change in federal court where they may have an advantage.
The lawsuit is part of an effort to force action on the climate change issue through the courts, as opposed to having elected lawmakers make policy. Colorado municipalities argue that they have been harmed by a warming climate and that the companies’ products contribute to injuries they have suffered, including hotter springs and summers, a longer wildfire season, and altered precipitation patterns.
The case currently before the Supreme Court doesn’t deal with climate change as such; it is concerned with whether the Colorado lawsuits should proceed in federal court or the state court where they were originally filed. Lawyers consider the state court to be more amenable to the municipalities’ claims, while the oil companies seem to think it would be easier to have the claims dismissed by the federal courts.
Suncor Energy (U.S.A.) Inc., two of its corporate affiliates, and Exxon Mobil Corp., asked the Supreme Court last week to accept their petition in Suncor Energy v. Board of County Commissioners of Boulder County, court file 21-1550. The Supreme Court may decide later this month whether it will hear the case.
Several Colorado municipalities filed what activists call “climate accountability” or “climate fraud” lawsuits against the oil companies, relying on the disputed theory of man-made global warming that holds that the production and consumption of so-called fossil fuels—oil, coal, and natural gas—is heating up the planet.
As of August 2022, there were at least 20 such pending lawsuits launched by cities and states across the United States, PBS previously reported. California cities filed similar lawsuits back in 2017 and attorneys general in Rhode Island, Connecticut, and Minnesota did the same the next year, alleging the companies violated local consumer-protection laws.
The municipalities in the case at hand argue (pdf) that the companies “concealed and/or misrepresented the dangers associated with the burning of fossil fuels despite having been aware of those dangers for decades.”
These allegedly deceptive practices “contributed to excessive burning of fossil fuels, leading to increased levels of carbon dioxide in the atmosphere and making it necessary for [the municipalities] to spend significant additional sums on basic government services (such as maintaining roads and fighting forest fires) to mitigate the cascading effects of climate change,” the Colorado municipalities stated in a brief.
The Supreme Court looked at the jurisdiction issue previously, issuing an inconclusive ruling on May 17, 2021, in BP PLC v. Mayor and City Council of Baltimore, a separate climate change-related lawsuit. Exxon Mobil was a petitioner in that case, alongside BP.
In that case, the companies had “removed” the case to federal courts, arguing that energy production was a federal issue. By a vote of 7–1, the Supreme Court instructed the U.S. Court of Appeals for the 4th Circuit to take another look at the removal issue but did not state which court was the proper venue for the case.
After a federal district court remanded the case at hand to state court, the U.S. Court of Appeals for the 10th Circuit in Denver affirmed that order on Feb. 8, 2022, finding that the grounds argued by the companies for changing venue to the federal courts were insufficient. On June 8 of that year the companies petitioned the Supreme Court.
In a brief filed on March 16 of this year, U.S. Solicitor General Elizabeth Prelogar said the Biden administration decided that “state-law claims like those pleaded here should not be recharacterized as claims arising under federal common law” and that, therefore, the companies’ petition should be denied.
This is a change from the policy of the Trump administration, she added.
The attorney for the energy companies, Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton, and Garrison, accused the government of “flip-flopping on the merits,” in an April 5 supplemental brief (pdf).
The government “does not dispute that the questions presented here are exceedingly important ones worthy of this Court’s review,” the lawyer wrote. He added that there are now “six petitions pending before the Court arising from similar climate-change cases that present the same basic questions.”
“It is preposterous to suggest that the fate of these cases—with their potentially enormous consequences for an entire sector of the global economy—should be left to handpicked state courts without a decision by this Court sanctioning that outcome,” he wrote.
The Epoch Times reached out to Shanmugam but he refused to comment.
Attorney Marco Simons of EarthRights International, who represents the Colorado municipalities, referred The Epoch Times to a statement that he made on March 16, after Prelogar asked the Supreme Court to deny the petition.
“Since the Colorado communities filed this case in 2018, Exxon Mobil and Suncor have consistently sought to delay the litigation—moving the case from court to court and losing each step along the way,” Simons said at the time.
“Today’s development brings these communities one step closer to holding fossil fuel companies accountable for their misconduct and obtaining remedies for the serious climate harms Colorado residents are facing.”
The companies are trying “to circumvent settled law” and “would radically expand the scope of federal courts’ jurisdiction. The Solicitor General’s office correctly concluded that this case presents state-law claims, which state courts regularly hear and decide without issue, and that this litigation thus belongs in state court,” Simons said.
The justices are scheduled to consider the case at their upcoming judicial conference on April 21. If at least four of the nine justices grant the petition, oral argument will be scheduled in the case.