Where 5 key climate cases stand ahead of Supreme Court brawl

Source: By Jennifer Hijazi, E&E News reporter • Posted: Sunday, December 20, 2020

The latest batch of climate liability lawsuits is plowing ahead in federal court as the nation’s highest bench gets ready to decide a case that will help determine whether such challenges belong in state or federal venues.

Leaders from Connecticut, Delaware, South Carolina, Hawaii and New Jersey unleashed a flurry of climate complaints this summer, adding to the growing heap of lawsuits asking oil and gas companies to pay up for climate impacts like extreme heat, wildfires and flooding that have been linked to emissions from producing and burning fossil fuels.

Attorneys for the companies have moved all five of the new cases from the state benches where they were originally filed to federal district courts, where the challenges may face a greater chance of failure. Lawyers for Charleston, S.C., for example, are fighting industry’s efforts while the Supreme Court prepares to dip into the fight.

Industry’s attempt to move climate litigation to federal benches “only delays resolution of this matter and continues to shift the costs for which Defendants are liable onto the City and Charlestonians — costs that grow as the rising sea levels and extreme weather events experienced by the City and its residents increase in frequency and intensity,” attorneys for the city wrote in a brief filed earlier this month.

Nearly all of the new state and local climate lawsuits raise a combination of state consumer protection and anti-fraud claims, arguing that companies intentionally misled consumers about the impact oil and gas development has on rising global temperatures. States, counties and cities are calling on the courts to place industry on the hook for the alleged deception.

Federal courts have largely found that such lawsuits should be allowed to move forward in state court — good news for Charleston and other challengers.

But lawyers for oil and gas firms this year took the issue all the way to the Supreme Court, in a case titled BP PLC v. Mayor and City Council of Baltimore, where the justices will weigh in on a technical question that could cause major delays in a mountain of climate challenges filed as far back as 2017. The high court could even take industry attorneys up on their invitation to find that all lawsuits dealing with interstate greenhouse gas emissions belong in federal court (Climatewire, Nov. 17).

Delaware’s first brief is due later this month. Here is where the cases from Connecticut, South Carolina, Hawaii and New Jersey stand, ahead of oral argument in BP v. Baltimore:

Connecticut

Exxon Mobil Corp. told federal judges last month to kill a consumer protection case brought by Connecticut Attorney General William Tong (D) this fall.

Tong’s case contends that Exxon should be on the hook for warming impacts under Connecticut’s Unfair Trade Practices Act because it “misled and deceived” consumers in the state about the effect of the company’s operations on climate change (Greenwire, Sept. 14).

Exxon, the only company targeted in Connecticut’s climate lawsuit, argued the case should be dismissed because Tong has no jurisdiction to sue over business operations that occurred outside the state. The company removed the case to the U.S. District Court for the District of Connecticut in October.

“As the Complaint acknowledges, ExxonMobil is a New Jersey corporation headquartered in Texas,” Exxon attorneys wrote in their motion to dismiss Connecticut’s case. “The Complaint does not allege facts suggesting that ExxonMobil has any substantial presence in Connecticut, much less one so exceptional that it could be considered ‘at home’ here.”

In a brief filed last week, lawyers for Connecticut argued that the oil company had mischaracterized the case. They said the lawsuit belongs back in state court because it does not raise federal claims.

Hoboken, N.J.

Lawyers for Hoboken, N.J., Mayor Ravi Bhalla launched arguments last week to bring the city’s negligence and consumer fraud lawsuit against oil industry interests like Exxon and the American Petroleum Institute back to the local court where it was filed this fall (Greenwire, Sept. 2).

In a brief filed last week, attorneys for Hoboken harpooned industry’s “hollow” attempt to move the case to the U.S. District Court for the District of New Jersey.

“The federal courts have rejected Defendants’ first six attempts, on similarly lengthy and insubstantial removal notices, to remove well-pleaded state-law claims from state court to federal court,” Hoboken wrote in its filing.

“Yet, Defendants persist, buoyed by an unlimited litigation budget, in advancing exactly the same frivolous arguments for the umpteenth time,” lawyers for the city continued.

Industry’s response is due Jan. 29.

Hawaii

Honolulu’s climate case is on ice again after it was put on hold pending the outcome of two similar lawsuits out of California.

The U.S. District Court for the District of Hawaii ruled last month that proceedings in Honolulu’s brawl should be halted while attorneys catch up with briefing in a related climate action brought by Maui County.

The county’s lawsuit raises claims under state public nuisance, negligence and trespass laws that firms like Chevron Corp. and Royal Dutch Shell PLC deceived consumers about the links between the oil and gas industry’s activities and climate change (Climatewire, Oct. 14).

Citing the 9th U.S. Circuit Court of Appeals’ previous ruling that rejected the idea that climate cases from California raise federal issues, attorneys for both Honolulu and Maui argued in federal district court in Hawaii that their cases should similarly be tossed back to state court.

Industry lawyers’ response to Maui’s challenge is due next week.

Charleston, S.C.

As the Supreme Court grapples with the question of a proper venue for climate challenges, industry lawyers are trying to halt a lawsuit brought by local leaders in Charleston, S.C.

Charleston’s case alleges that companies like Exxon and Chevron are responsible for “causing and accelerating climate change” by lying about the effect fossil fuels have on warming temperatures (Climatewire, Sept. 10).

But if the Supreme Court speaks directly on whether climate lawsuits raise federal questions, “there will be no need for the parties to brief (and this Court to decide) that issue here,” industry attorneys wrote in their request that the U.S. District Court for the District of South Carolina temporarily stop Charleston’s case.

The city countered that the case pending before the Supreme Court is “irrelevant.” Regardless of how the justices come down on the question, attorneys for Charleston said the federal district court will still need to reach a decision on whether the lawsuit belongs back before a state judge.

The South Carolina court has a Feb. 5 deadline to decide whether to postpone the case.