Biden’s Climate Support Could Spawn More Cases Against Big Oil

Source: By Ellen M. Gilmer, Bloomberg • Posted: Thursday, July 23, 2020

State and local governments suing Big Oil over climate change got a boost last week when Democratic presidential hopeful Joe Biden committed to supporting their cause—a move that could encourage more lawsuits against the industry if Biden wins.

Biden’s sweeping clean energy plan, unveiled July 14, includes a pledge to instruct the attorney general to “strategically support ongoing plaintiff-driven climate litigation against polluters,” a reference to more than a dozen lawsuits seeking money from fossil fuel companies for local harms related to global temperature rise.

The plan doesn’t go into detail on the commitment, but any federal support for the climate plaintiffs would mark a 180-degree turn from the Trump administration’s backing of Exxon Mobil Corp., BP Plc, and other companies in the litigation.

“This is perhaps an opportunity for the federal government to side with the people that the federal government serves instead of industry,” said Ama R. Francis, a fellow at the Sabin Center for Climate Change Law at Columbia University.

Federal reinforcement of the plaintiffs’ claims could pay dividends in the courtroom, where judges tend to pay special attention to the Justice Department’s views. And with the White House’s blessing, more cities and states could take up the cause in their own litigation against fossil fuel producers.

“It will add fuel if you know that the federal Department of Justice is also there supporting you,” said George Mason University law professor Donald J. Kochan, an environmental law and torts expert.

San Francisco, New York City, Baltimore, Rhode Island, and other jurisdictions are pushing a variety of legal arguments, including claims that oil companies have violated state-level public nuisance and product liability law by misleading the public about the leading role of fossil fuel combustion in climate change.

What Kind of Support?

Biden has waded into climate litigation issues on the campaign trail, calling for more aggressive prosecution of corporate bad actors and drawing parallels to litigation against tobacco companies and opioid manufacturers.

“I’ve argued and pushed for us suing those executives who are engaged in pollution, those companies engaged in pollution,” the former vice president said at the Climate Crisis Town Hall last year in New York City. “I’ve never walked away from that.”

Biden’s campaign doesn’t have specifics about how he would “strategically support” plaintiff-driven climate litigation beyond what the candidate has said on the debate stage, a spokesman said.

Lawyers and legal scholars speculated that friend-of-the-court, or amicus, briefs are the most likely form of support the Justice Department would offer, though other possibilities include federal grants, investigations, and veto threats for legislation that includes climate liability protection for the industry.

“There’s so many things they can do,” Center for Climate Integrity executive director Richard Wiles said. “DOJ could launch their own investigation. They could ask for documents. They could do strategic amicus filings. There’s a lot of opportunities to intervene on behalf of plaintiffs. All of that would be ‘strategic support.’”

‘Courts Tend to Pay Attention’

Favorable amicus briefs could make a big difference to climate plaintiffs, Karen Sokol, an environmental law and torts professor at Loyola University in New Orleans, said.

“Courts tend to pay attention to amicus briefs filed by the federal government, particularly when they are concerned about big cases that push new theories like this,” she said.

The Trump administration has taken the industry’s side in a series of procedural skirmishes in the climate cases, arguing that the federal Clean Air Act displaces the plaintiffs’ claims.

A Biden administration could effectively flip the argument, Sokol said, and “it could be quite powerful” in reassuring courts that the cases don’t interfere with the federal government’s policy work.

Sher Edling LLP, a plaintiffs’ law firm involved in many of the cases, didn’t respond to a request for comment on Biden’s plan. Repeat defendants Exxon, BP, and Chevron Corp. either declined to comment or didn’t respond to questions.

The American Petroleum Institute criticized Biden’s commitment.

“Rather than wasting taxpayer resources endlessly litigating, it’s high time policymakers join us in actions, innovations and emissions reduction results to help solve the real climate challenges facing society,” senior vice president and chief legal officer Paul G. Afonso said in a statement. “Threatening lawsuits against America’s energy workers is not a serious plan.”

‘Dangerous Policy’

George Mason’s Kochan said Biden’s promise of support benefits the plaintiffs “by simply having a cheerleader inside DOJ,” but he said the approach could amount to “a very dangerous policy of federal interference.”

The Justice Department’s involvement on the plaintiffs’ side would signal federal support for expanding tort litigation, whereas the Trump administration’s participation on the industry’s side simply aimed to prevent judges from making policy decisions reserved for the political branches of government, he said.

But the agency’s role in the climate litigation shouldn’t be interpreted as a broader indicator of its legal views in other contexts, Selendy & Gay PLLC attorney Lena Konanova said.

“It’s not necessarily clear to me that the DOJ saying, ‘Yeah, we believe polluters should be held accountable’ is necessarily going to create problems for the DOJ otherwise,” she said.

That debate touches on a core conflict in the climate cases. The cities’ and states’ legal filings are focused on collecting money to cover the impacts of the energy industry’s alleged deception about fossil fuels.

The oil companies, with Trump’s backing, say the lawsuits are veiled attempts to take advantage of the court system to force a reduction in greenhouse gas emissions.

Federal judges fielding those arguments have largely allowed the lawsuits to move ahead in state courts. Kochan said ultimate victories for the plaintiffs, coupled with Biden’s support, will make climate litigation “contagious.”

“More people will see the opportunity across the nation,” he said.