By Karen Savage
A group of fossil fuel companies have appealed to the U.S. Supreme Court in a last-ditch effort to stop Baltimore’s climate liability suit against them from going to trial in state court.
In an application filed Tuesday, the companies—including oil giants BP, Exxon, Shell and Chevron—asked the Supreme Court to halt the suit on Tuesday, hours after the Fourth Circuit Court of Appeals declined to do so. The companies want to keep the suit from proceeding while they appeal a U.S. District Court judge’s ruling that the suit belongs in state, not federal court.
The companies, however, did win a halt to the proceedings until the Supreme Court decides whether or not to intervene. District Court Judge Ellen Hollander, who made the initial ruling to send the case to state court, granted a motion to stay while the Supreme Court considers the request. Baltimore has until Oct. 7 to appeal that ruling.
The companies also asked the Supreme Court to stay the case should the appellate court uphold the lower court decision and allow the case to proceed in state court, indicating they will ask the high court to review that decision, should it occur.
It is rare for the Supreme Court to issue a ruling based on an appellate court decision that hasn’t yet been issued.
It did, however, happen in 2015/2016, when the Supreme Court stayed implementation of the Clean Power Plan, the Obama administration’s major carbon reduction rule, while it was under review by a federal appeals court.
“The Clean Power Plan stay is the only precedent I am aware of for this. And that, it is widely said, was unprecedented,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.
For a stay to be granted, the companies will have to prove their cause meets several criteria, which are intentionally difficult to meet. There must be a “reasonable probability” that the Supreme Court will agree to review the case; a “fair prospect” that the court will find the lower court ruled erroneously; and the applicant must show it will be irreparably harmed if a stay is denied. The court may also consider harms posed to both sides of the lawsuit, as well as to the public.
“Because these criteria are so demanding — requiring the Court essentially to decide in advance the merits of the case without any significant briefing or oral argument from the parties and without the benefit of a trial and the evidence it produces — stays used to be highly unusual,” said Ann Carlson, co-director of the UCLA School of Law’s Emmett Institute on Climate Change.
“But we’ve seen, of course, the Court issued a stay in the Clean Power Plan case before we ever had a decision on the merits and we saw a temporary stay, by Chief Justice John Roberts, in the Juliana v. U.S. case, although in that case—like the Baltimore nuisance case—we had a ruling from the lower court,” said Carlson, who has provided pro-bono consulting for Baltimore and other municipalities.
Baltimore’s suit, which was filed in state court last year, has progressed further than any of the liability suits that have been filed by dozens of communities across the country.
The city alleges that ExxonMobil, Chevron, Shell and 23 other fossil fuel producers and distributors knew for decades that fossil fuels drive climate change but deliberately failed to inform the public about those risks. It is charging the companies with eight legal violations, including public nuisance, private nuisance, failure to warn and violations of Maryland’s consumer protection laws.
As in other public nuisance-based climate liability cases filed across the country, the fossil fuel defendants immediately moved the case to federal court.
Jurisdictional issues have been a main point of contention in all of the suits, with the municipalities trying to get the cases heard in state court under state public nuisance laws and the industry fighting to put them in federal court, where past climate-related cases have been decided largely in its favor.
A U.S. District Court judge ruled that suits filed by Oakland and San Francisco belong in federal court and later dismissed them. The cities have appealed the ruling to the Ninth Circuit Court of Appeals.
A different judge ruled that suits filed by several other California communities, including the cities of Santa Cruz, Imperial Beach and the counties of Marin, San Mateo and Santa Cruz, belong in state courts and the fossil fuel companies have appealed that decision to the Ninth Circuit.
Judges have also ruled that suits filed by several Colorado communities and the state of Rhode Island belong in state court, a decision that has also been appealed. In Louisiana, judges have sent cases to state court involving communities suing oil and gas companies for damaging the coastal wetlands and increasing the state’s vulnerability to sea level rise and other climate impacts. Those rulings are also under appeal.
The fossil fuel companies sued by Baltimore contend the claims fall under federal common law.
“These inherently federal cases should not be resolved piecemeal in state court under state law,” the companies wrote in their application to the Supreme Court.
Carlson said she is doubtful the Supreme Court will grant the companies a stay.
“It’s hard to argue that they meet the four criteria above when what they’re really seeking is to avoid discovery, hardly an irreparable harm. The legal argument involved—whether state nuisance law is preempted by the Clean Air Act or some vague constitutional argument—is a long shot for the defendants,” Carlson said.
“Applying state nuisance law to climate change is a far less novel and controversial proposition than finding the constitutional right to a stable environment that the Juliana plaintiffs are seeking. But betting on the Court is, of course, always a dicey proposition.”