News & Analysis
November 17, 2020
The U.S. Supreme Court agreed last month to review a narrow procedural question in a lawsuit brought by the City of Baltimore that seeks to hold major oil and gas companies accountable for billions of dollars in climate damages they knew their products would cause.
But lawyers for BP, Exxon, Chevron, Shell, and the other defendants are now urging the justices to act far beyond the narrow question before them and issue a much broader ruling that could undermine climate accountability lawsuits nationwide.
In a brief filed yesterday, lawyers for the oil companies argue the high court should bypass the procedural issue and instead order that “this case and others like it” be heard in federal court, where the oil companies believe they have a better chance of getting climate cases dismissed.
In other words, Big Oil is trying to pull a bait and switch. Having gotten their foot in the door by convincing the Supreme Court to consider a specific procedural issue, Big Oil’s lawyers are asking the justices to now skip right ahead to what the industry really wants, but has failed to win in lower courts: the removal of all climate lawsuits against them to federal court.
The issue the Supreme Court originally agreed to review is extremely technical. As we broke down previously, it concerns which issues an appeals court can review when deciding whether a climate damages case belongs in state court — where Baltimore’s was originally filed and the industry fears facing trial and discovery — or in federal court.
Four separate federal appeals courts across the country — the First, Fourth, Ninth, and Tenth — have ruled that climate damages cases against Big Oil belong in state court, because they are based on state law. But those appeals courts also found that their scope of review on the question is limited to the so-called “federal officer removal” statute, under which a case can be moved from state to federal court if a defendant acted with or on behalf of the federal government.
The Big Oil defendants had asked the Supreme Court to overturn one of those rulings, from the Fourth Circuit in Baltimore’s case, and order the appeals court to consider seven additional arguments the companies have made for the case to proceed in federal court. (A federal district court previously rejected those other arguments and agreed the case belongs in state court.)
In many ways, Big Oil’s sweeping request is the latest Hail Mary play from an industry that has fought to stop or delay lawsuits against them every step of the way but has so far failed to stop their momentum. Virtually every court to consider this important jurisdictional issue of state vs. federal court has ruled against Big Oil and made clear that climate damages cases belong in state court. (The only outlier decision, from a federal district court in California, was overturned by the Ninth Circuit.)
Having deceived the public about climate change for decades, these climate polluters are now hoping to deceive the highest court in the nation as to the real issue they wanted the justices to consider. This is a desperate ploy from an industry that is terrified by the possibility that juries of real people in state court will hear evidence that the companies lied to the public for decades about the accelerating climate crisis their products caused.
The Supreme Court should reject Big Oil’s sweeping request and address only the procedural question they originally agreed to consider.
