By Karen Savage
UPDATE, Oct. 22—The Supreme Court has denied the fossil fuel companies’ request to halt Baltimore’s climate liability case against them, allowing the case to proceed in Maryland state court while the Fourth Circuit Court of Appeals considers the companies’ appeal.
“This is a win for the City of Baltimore, bringing us one step closer to putting the high costs of adapting to and surviving the harmful consequences of climate change where they belong: on the fossil fuel companies who knowingly caused the crisis in the first place,” Baltimore city solicitor Andre Davis said. “The City of Baltimore is ready to prove its case in state court.”
The Supreme Court denied the request for a stay without comment. Fossil fuel defendants have two more petitions awaiting the Supreme Court’s decision on whether to halt cases filed in state courts by Rhode Island and three Colorado communities.
Oct. 21—Baltimore has asked the U.S. Supreme Court to deny an application by more than 25 fossil fuel companies to halt its climate liability suit against them.
The companies—including oil giants BP, Exxon, Shell and Chevron—asked the Supreme Court earlier this month to stop the case from proceeding in state court after the Fourth Circuit Court of Appeals declined to do so. The companies are appealing a U.S. District Court judge’s ruling that the suit belongs in state, not federal court, and are filing these motions to stop its progress until the appeal is heard.
It is a pattern the fossil fuel companies are using in many of the climate liability cases filed against them. As courts have begun sending these cases to state court—while the companies argue they belong in federal court because they believe they have a better chance there—they file repeated appeals to higher courts to stop the cases. The companies have also appealed to the Supreme Court to halt Rhode Island’s lawsuit against them.
“The district and circuit courts both denied BP’s motions to stay remand pending appeal, as have the First Circuit, the Tenth Circuit, and two other district courts considering identical requests to stay remand orders in cases raising similar issues,” Baltimore wrote in its opposition to the companies’ application for a stay.
It is rare for the Supreme Court to rule on an appellate court decision that hasn’t yet been issued, but the fossil fuel defendants in suits filed by Baltimore and Rhode Island have asked the court to do just that. Both suits are paused pending a decision by the high court.
Suits filed by Baltimore, Rhode Island and three Colorado communities have progressed further than any of climate liability suits filed by dozens of communities across the country. All involve public nuisance claims and allege that the fossil fuel producers and distributors knew for decades that their products drive climate change but deliberately failed to inform the public about those risks.
As in other public nuisance-based climate liability cases, the fossil fuel companies contend the suits belongs in federal court, where climate-related cases have been largely decided in the companies’ favor.
The National Association of Manufacturers, which through the Global Climate Coalition worked for years to stifle action on climate change and emphasize the uncertainty in climate science, contends the suit is part of a wave of “politically-oriented litigation born out of frustration that not enough is being done on climate change.”
“Defendants are engaged in the production and sale of lawful energy products that are essential to modern life and largely responsible for the monumental progress in global health and living standards over the past century,” NAM attorney Phil Goldberg wrote in an amicus brief filed earlier this month on behalf of the defendants in Baltimore’s suit.
Goldberg wrote that while the group is committed to protecting the environment and public health, it has “grave concerns” about efforts to hold companies liable for the damage done to the climate by fossil fuel products.
That type of thinking has been dubbed “soft” climate denial by policy analyst Michael Hoexter, climate scientist Michael Mann and others concerned with the catastrophic effect the burning of fossil fuels is having on the global climate. Instead of denying the reality of climate change, it’s a tactic that acknowledges concern over it, while arguing that the proposed solutions are too drastic and will damage the economy.
Goldberg, a former coal lobbyist, is a managing partner in the Washington office of Shook, Hardy & Bacon, which gained notoriety for defending the tobacco industry. He is co-chair of the firm’s public policy group.
NAM has put itself front and center in the effort to keep fossil fuel companies from being held liable for their role in climate change. Goldberg was brought on earlier this year to head NAM’s Manufacturers’ Accountability Project, which was launched in 2017 to push back on the growing wave of climate liability suits.
In order for the Supreme Court to grant a stay, the companies must prove their application 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.