News & Analysis
May 7, 2020
You can almost set your watch to it: Every time a city, county, or state government files a lawsuit in state court seeking to hold Big Oil companies accountable for the local costs of climate change, the industry’s lawyers inevitably argue that the case should be heard instead in federal court.
It’s not just a delay tactic: Big Oil believes their chances of quashing the cases are better in federal court.
But the industry’s strategy has not worked out very well for them: with one exception, every district court judge to consider the state vs. federal issue, and the only appeals court to rule on the issue to date, have all agreed that the cases should proceed in state court where they were originally filed.
This week, lawyers for ExxonMobil and Suncor Energy asked another appeals court — the Tenth Circuit Court of Appeals — to overturn one of those rulings in a case brought by three Colorado communities, who want the industry to pay their fair share of the steep costs they face over increased floods, wildfires, droughts, and other climate-worsened disasters resulting from decades of Big Oil’s deception. During oral arguments, one of the attorneys representing those communities explained why the cases belong in state court.
As Amy Westervelt at Drilled News reports:
Richard Herz, an attorney with Earth Rights International, argued on behalf of the City and County of Boulder and San Miguel County that last year’s decision by federal district court Judge William Martínez to keep the case in state court should stand, and that the 10th Circuit’s legal leeway to review the lower court’s decision was limited. [...]
Herz compared his case to past litigation by states against tobacco firms, as well as more recent opioid lawsuits. “All these things are about sales and misrepresentations,” he told Judge Lucero, ”and local governments have sued for local injuries in these areas, in state court, under state law.”
In February, the Ninth Circuit Court of Appeals heard similar arguments about state vs. federal jurisdiction in cases brought against Big Oil by eight California communities. The appeals court rulings on the future of the Colorado and California cases are expected later this year.
Meanwhile, fossil fuel companies have already asked the U.S. Supreme Court to overturn a ruling from the Fourth Circuit Court of Appeals to keep a lawsuit from the City of Baltimore in state court.
If it wasn’t clear already, Big Oil really, really doesn’t want these communities to have their day in state court. Now, why could that be?
Image by Wally Gobetz on flickr.
