BP and other oil majors are calling on the Supreme Court to deal a blow to the growing number of city and state-led lawsuits seeking to force the companies to pay billions for climate damages.
The Supreme Court justices will hear arguments over one of the cases, brought by the city of Baltimore, on Tuesday. Baltimore is arguing oil companies deliberately understated the effect their products would have on rising greenhouse gas emissions.
The city is asking courts to hold the companies liable for the costs of adapting to climate change effects such as sea level rise, flooding, and extreme weather. The number of similar cases has now reached two dozen, brought by cities, counties, and states across the country.
However, on Tuesday, the Supreme Court won’t consider the heart of the case, whether the oil companies should pay. Instead, the justices will hear arguments over a narrow procedural issue related to whether the Baltimore case and others like it should be heard in state or federal court.
Oil companies have repeatedly attempted to move the cases to federal court, which they and their allies believe would be a more favorable venue. Four times now, federal appeals courts have rejected their efforts. In October, the Supreme Court agreed to hear oil companies’ appeal in the Baltimore case.
The oil companies are hoping the Supreme Court will broaden its response and determine Baltimore’s case and others like it should be heard in federal court. Major industry trade groups such as the American Petroleum Institute and National Association of Manufacturers, the Trump administration, and several GOP state attorneys general are backing the oil majors in the lawsuit.
Part of the industry’s argument is Baltimore’s case and others like it are dealing inherently with issues of federal policy and would impede on Congress and the executive branch’s ability to set policies that curb emissions. Industry groups also argue the climate cases are purely political.
“The truth is that there are two dozen of these cases that have been filed by the same people with the same financial backers and the same lawyers who are trying to game the system,” said Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, a legal arm of the National Association of Manufacturers.
“This litigation is not going to move the ball forward on dealing with the climate, and it’s really not going to move the ball forward on how we deal with the impacts of climate change,” he added. “The city of Baltimore wants to absolve itself of any responsibility, even though it’s been a part of modern society like everybody else has been for the past 100 years.”
Environmentalists supporting the climate cases, however, say the claims of Baltimore and the other cities, counties, and states about who should be held liable for compensation fall well within the court’s purview.
“Congress is in no position to sort out liability. They never have been,” said Richard Wiles, executive director of the Center for Climate Integrity. “That’s always been the role of the courts in these gigantic environmental disasters.”
Wiles said if the Supreme Court justices decide to stick to the narrow procedural issue at hand, Baltimore and its allies have the upper hand in arguments. But even if the Supreme Court rules against Baltimore on that issue, it doesn’t kill the case, he said. It would simply send the issues back to the federal appeals court for another round of legal consideration.
“It’s just another delay tactic,” Wiles added.
Just eight justices will hear the case Tuesday, as Justice Samuel Alito has recused himself due to stocks he holds in some of the companies being sued.
Environmentalists have also argued the Supreme Court’s newest justice, Amy Coney Barrett, should recuse herself from the case because her father worked for Shell, one of the plaintiffs, for decades. It doesn’t appear yet that she will skip the arguments.
The Trump administration will also get to make its case supporting the oil companies during Tuesday’s arguments, its last before President-elect Joe Biden is sworn into office.
Biden has pledged to take a different view of these climate cases, suggesting he would back the cities, counties, and states challenging oil companies. Wiles said his group will be urging the Biden team to make a statement to the court quickly after it enters office that changes its stance in the Baltimore case, though it’s unclear whether the justices would have to consider any such move.
“It’s certainly fitting they would go out defending the companies that lied about climate change for years and sent the world into this climate crisis,” Wiles said of the Trump administration.