Supreme Court Case Could Limit Future Lawsuits Against Fossil Fuel Industry
Version 0 of 1.
The Supreme Court heard a case on climate change on Tuesday that could help shape the fate of dozens of similar lawsuits across the country.
The oral argument in BP P.L.C. v. Mayor and City Council of Baltimore, No. 19-1189, was not about whether climate change is real or caused by greenhouse gases generated by humans. The hearing was not even about whether fossil fuel companies should pay Baltimore for the costs of climate change, which is the point of the underlying lawsuit.
Instead, the justices decided to hear the case on a single, highly technical legal question: What happens when a federal court sends a case to be heard in state courts? That is what has occurred in the Baltimore case, which began its life in state court, and which the fossil fuel companies are trying to move to federal court, where they expect a more favorable outcome. The question before the Supreme Court is whether, in hearing the appeal of a decision to send a case back to state court, a federal appeals court must limit its review to the two very specific and narrow reasons that the law allows, or whether it can look more broadly at the lower court’s decision.
About 20 climate cases like Baltimore’s have been filed by cities, counties and states nationwide since 2017 — first in California, then spreading across the country to include Colorado, Minnesota and Rhode Island, as well as Hoboken, N.J.
What concerns some environmental law experts is that by allowing a broader review of the lower court’s decision, the justices might scuttle similar cases, or send a strong signal that the lower courts should do so. Sean B. Hecht, a co-executive director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles, School of Law, said that while the issue presented before the court was “hyper-technical,” the fossil fuel companies were “trying to make the court look at a much bigger question” as to whether the case should be governed by state or federal law. “It’s a pretty audacious ask” that essentially says, “While we’re here, it would save everybody time if you just help us get rid of this case now,” he said.
That’s why Patrick A. Parenteau, a law professor and an expert on environmental law at Vermont Law School, said that the case “could be anything from a nothing burger to a blockbuster.”
During Tuesday’s oral argument, Kannon K. Shanmugam, a lawyer for the companies, told the justices that lawsuits about a global problem should be resolved in federal court under federal law, making uniform rulings more likely. “This court’s precedents dictate the common-sense conclusion that federal law governs claims alleging injury caused by worldwide greenhouse gas emissions,” he said.
He added that there was “a risk of local prejudice” in state courts. “There is something profoundly counterintuitive about the notion that these cases, which seek relief for injuries caused by worldwide greenhouse gas emissions, should be litigated in state courts under the laws of different states.”
The companies argued that once any ground for appeal existed, the appeals court was obligated to consider all of them.
Several justices noted concerns about litigation gamesmanship, saying companies could use a weak claim within the permissible avenues of appeal to smuggle claims that otherwise could not be reviewed into appeals courts. Victor M. Sher, a lawyer for Baltimore, echoed the point, saying that “you cannot use an appealable issue as a ticket for multi-issue appeals that are not allowed.”
Mr. Sher added that the tactic could be used in a “range of cases, including environmental regulation, opioids, subprime lending in financial institutions and others.”
Baltimore’s suit, initially filed in July 2018, argues 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 notes that the city is “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. It also cites the cost of health-related issues associated with climate change, including increased rates of hospitalization in summer.
Michael Martin, the pastor of the Stillmeadow Community Fellowship, a church in Southwest Baltimore, said that the effects of climate change on the city were increasingly clear. “We’re on a trajectory to more flooding, and worse flooding,” he said. The church served as a community hub after ruinous flooding in May 2018 buckled roads and put seven feet of water in the streets. And the floods keep coming.
As for Baltimore’s case, he said, “I think it’s bold, and I think it’s useful.” But he suggested that focusing on fossil fuel companies alone was shortsighted, because other factors like development were major contributors to flooding as well.
Justice Samuel A. Alito Jr. disqualified himself from the case, presumably because of a financial conflict. Environmental groups said Justice Amy Coney Barrett, whose father had worked for Shell Oil Co., one of the defendants, should also have recused herself, but she participated in Tuesday’s argument.
Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, said that he doubted the industry’s tactic to pry open a broader appeal would work. “The justices are very scrupulous about staying to the questions presented,” he said.
Professor Hecht of U.C.L.A. said he agreed that it was unlikely the justices would reach beyond the technical legal question directly before them. But, he added, “you never really know what the justices will do.”
Adam Liptak contributed reporting.