Supreme Court Gives Big Oil a Win in Climate Fight With Cities

Source: By John Schwartz, New York Times • Posted: Tuesday, May 18, 2021

But in the case, filed by the city of Baltimore, the high court gave the fossil fuel industry far less than it had asked for.

Debris on railroad tracks in the Charles Village neighborhood of Baltimore after heavy rains in 2014.
Associated Press

The Supreme Court handed a victory to fossil fuel companies on Monday in a major climate change case, but gave the industry far less than it had asked for.

The decision in the case did not deal with the merits of the lawsuit, which Baltimore filed to try to compel fossil fuel companies to help pay the costs of dealing with climate change. Instead, the justices focused on narrow issues concerning the rules for appealing lower-court decisions that send cases to state courts.

By a 7-1 decision, the Supreme Court on Monday sent the case back to the Court of Appeals for the Fourth Circuit to reconsider the industry’s demand that it review a lower-court decision to have the case proceed in state courts.

The issue of whether to hear these cases in federal or state court has been a major point of contention in about 20 similar cases filed around the country.

The fossil fuel companies prefer the federal courts. That’s partly because state and federal laws typically treat cases like these, which depend on the common law of nuisance, differently. A unanimous 2011 Supreme Court decision said that, under federal law, the Clean Air Act displaced common law of nuisance, giving jurisdiction to the Environmental Protection Agency.

But plaintiffs like Baltimore have argued that state laws should take precedence. They may also see the local courts as a friendlier venue.

While the companies won the day, “it was a bullet dodged” for Baltimore, said Patrick Parenteau, an expert on environmental law at Vermont Law School. “The oil companies were looking for a kill shot,” he said, in which the justices would vote to throw the Baltimore case and the rest out, or at least use language in the decision that would send a message to the lower court that the cases would get a skeptical hearing at the Supreme Court level.

Instead, Justice Neil M. Gorsuch’s opinion focused on the narrow procedural issues.

Baltimore filed its suit in July 2018, arguing that the companies’ “production, promotion and marketing of fossil fuel products, simultaneous concealment of the known hazards of those products, and their championing of anti-science campaigns” harmed the city. The lawsuit noted that Baltimore “is particularly vulnerable to sea level rise and flooding,” and that it has spent “significant funds” to plan for and to deal with global warming. The case cited the cost of health-related issues associated with climate change, including increased rates of hospitalization in summer.

Appeals courts have traditionally been unable to review a decision sending cases to state court except in vary narrow exceptions. Courts are divided over how broad the review of such a decision can be.

In the case, BP P.L.C. v. Mayor and City Council of Baltimore, No. 19-1189, the fossil fuel companies requested an expansive review of issues in the decision to send the case to state court; the city requested that the rules of appeal be interpreted narrowly, in a way that would have allowed the case to proceed in state courts. The court majority ruled that the appeals court should not be overly limited in its review of issues.

The lone dissenter, Justice Sonia Sotomayor, said that the fossil fuel companies had used what amounts to procedural sleight of hand to avoid the normal limits on review for a decision on appeal. The new decision, she warned, would open the federal appeals process to gamesmanship, allowing parties to make “near-frivolous arguments” in order to open a back door for appeal.

Justice Gorsuch dismissed such concerns, saying that the legislative branch could address any problems that might arise. “Congress is of course free to revise its work anytime,” he wrote. “But that forum, not this one, is the proper place for such lawmaking.”

Justice Samuel A. Alito Jr. did not participate in the decision; he owns stock in companies involved in the case. Supporters of the plaintiffs in this and similar cases have suggested that Justice Amy Coney Barrett should recuse herself because of family ties to the oil industry. Her vote with the 7-1 majority did not affect the outcome of Monday’s decision.

Sara Gross, chief of Baltimore’s affirmative litigation division in the city department of law, said in a statement, “While this isn’t the outcome we wanted, we are fully confident that the City will prevail again when the remaining issues are considered by the Court of Appeals.”

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, a pro-industry group, said in a statement that the decision “should stop this effort by Baltimore and other communities to circumvent federal law and undermine national efforts to address climate change through comprehensive public policies, innovation and collaboration.” Local courts, he said, are not the place to resolve “this important global challenge.”

In her dissent, Justice Sotomayor brought her argument back to the city and its problems. The Court, she said, is opening new avenues for appeal and delay. “Meanwhile,” she wrote, “Baltimore, which has already waited nearly three years to begin litigation on the merits, is consigned to waiting once more.”