The Supreme Court will hear a climate change case next year

Source: By Dino Grandoni, Washington Post • Posted: Monday, October 5, 2020

The question the high court plans to next year consider is a narrow procedural one. But its answer could have broad implications for a suite of other suits from local governments from Rhode Island to California aiming to hold fossil fuel companies accountable for global warming.

The court’s decision to review the case, announced Friday, is a win for oil companies hoping to stop the lawsuits looking for millions, if not billions, in damages for floods, fires and other climate change-fueled disasters.

The case also comes as President Trump and congressional Republicans prepare to solidify the court’s conservative majority with the nomination of Amy Coney Barrett to fill the seat of the late liberal icon Ruth Bader Ginsburg.

Should the Supreme Court rule in favor of the oil companies, it may make it harder for cities and states to secure victory in the climate cases.

Over the past several years, more than a dozen states, counties and cities have scrambled to sue oil companies over the damages they say their products caused in the form of longer droughts, stronger storms and fiercer wildfires.

Last month alone, Connecticut, Delaware, Charleston, S.C. and Hoboken, N.J. have made a slew of different claims in court with the same broad theme. They allege oil companies misled the public about the dangers posed by rising temperatures — and that taxpayers are now paying the price for it by having to erect higher sea walls and prepare for other effects of climate change.

In response, oil companies have tried to kick the cases out of state court and have them heard instead in the federal judiciary, where precedent indicates they will very likely prevail. Baltimore and other local governments want to keep the cases local, where they think they have a better shot at victory.

Next year, the Supreme Court will consider how much leeway appeals courts get in deciding the best venue for the climate lawsuits from states and cities.

The court, however, will not be considering broader questions about the science of climate change and the government’s role in stopping it.

“It’s certainly not your garden variety climate change case, in the sense that the court is certainly not going to be dealing with questions about, ‘Is climate change real?’” said Sean Hecht, a law professor at the University of California at Los Angeles who has aided several California counties in a climate lawsuit.

Still, the oil industry cheered the Supreme Court’s decision to hear the case, arguing that an issue of such national significance as global warming is a matter for the federal government, not states.

“This ongoing, coordinated campaign to wage meritless lawsuits against companies providing affordable, reliable and cleaner energy is nothing more than a distraction from these important issues and enormous waste of taxpayer resources,” said Paul G. Afonso, the chief legal officer of the American Petroleum Institute, a major oil lobbying group in Washington.

Baltimore said it is confident it will win the case on what it calls “a narrow technical issue” of what sort of information appellate courts can consider when deciding which jurisdiction — state or federal — the cases belong in.

“In public, defendants criticize our case as without merit. But in court, they do everything they can do to delay proceedings and avoid a public trial on the facts. Their days of having it both ways are ending,” said Dana P. Moore, acting solicitor for the city, which sued 26 defendants, including ExxonMobil, BP and Dutch Royal Shell, in 2018.

David Bookbinder, chief counsel of the Niskanen Center, a think tank, said he was “not surprised that they took the case.”

“It’s good that it’s a narrow issue,” said Bookbinder, who is part of a legal team representing three local governments in Colorado suing ExxonMobil and the Canadian oil firm Suncor Energy.

By the time the case is heard, Barrett could be on the Supreme Court.

But the already tight schedule for filling the vacancy created after the death of Ginsburg last month has been muddied by the positive coronavirus tests of at least two Republicans — Mike Lee (Utah) and Thom Tillis (N.C.) — on the Senate Judiciary Committee.

There is one conservative justice who may not hear the case. Justice Samuel Alito recused himself from the decision to grant the oil companies’ petition to review the matter.

Elevated by Trump to the U.S. Court of Appeals for the 7th Circuit in 2017, Barrett has a short record on the federal bench. But lawyers who have reviewed her writings and rulings say she will likely make it harder for blue states and green groups to win climate cases.

Trump’s nominee has a family connection to one of the oil companies being sued. Her father spent most of his own legal career working for Shell.