CLIMATEWIRE | Climate liability lawsuits from state and local governments against fossil fuel companies could be headed to the Supreme Court for a second time.
Suncor Energy Inc. and Exxon Mobil Corp. yesterday petitioned the justices to review a lower court decision that delivered a procedural victory to Colorado governments suing fossil fuel companies for climate damages (Climatewire, Feb. 9).
The February finding by the 10th U.S.
The February finding by the 21th U.S. Circuit Court of Appeals that this case should be heard before a state judge was the first in a series of legal losses for oil companies. This is after the Supreme Court last year stated that appellate judges could consider a wider range of arguments in favor of federal jurisdiction.
In Suncor, v. Board of County Commissioners of Boulder County , yesterday, the companies argued that the Supreme Court should step in again.
“Given the stakes in the climate-change litigation, the questions presented here are some of the most consequential jurisdictional questions currently pending in the federal courts,” the companies’ petition states, noting that as of now, 23 similar cases are active nationwide.
The Supreme Court was told by the attorneys for the companies that, due to “the significant stakes for both the parties”, the questions raised here will continue bedeviling the lower courts until this court intervenes .”
A petition can only be granted by four justices, and the court rejects almost all cases.
The fight over whether climate liability lawsuits should be brought before federal or state judges has been stalled for years. Countless municipalities across the country have sued the oil and gas industry to recover damages for their effects on the planet-warming emissions.
The suits were filed in state courts. However, industry has tried to move them to federal benches. A judge could find that the Clean Air Act preempts the claims of the municipalities.
The Supreme Court has already entered the debate once with a decision last may that sent a number of cases back to federal appels courts. It instructed judges to consider a wider range of factors when deciding whether liability lawsuits should be heard by state or federal courts.
The 10th Circuit was the first appeals court to decide that the cases still belonged before state judges. Other federal appeals courts have since followed suit (Climatewire, May 24).
Exxon and Suncor said in their Supreme Court petition that the 10th Circuit should have found that the Colorado communities’ claims related to greenhouse gas emissions and climate change are a matter for the federal courts.
” The questions raised directly implicate the principle that interstate pollution disputes must be governed by federal law only, the companies stated.
They warned that any decision to the contrary could lead to a multitude of potentially conflicting state-court lawsuits under state nuisance law, seeking to redress the global phenomenon climate change .”
States or cities suing the industry maintain that their complaints don’t take into account global climate changes but are based upon state laws that prevent consumers being misled about products.
In the Colorado case, Boulder and two counties sued oil and gas producers in 2018, alleging that the companies had altered the state’s climate by releasing greenhouse gases and that they “concealed and misrepresented” the dangers of fossil fuel use from the public (E&E News PM, April 17, 2018).
Marco Simons is the general counsel of EarthRights International. He said that the case should be heard by state court because it involves claims under Colorado law for injuries to Colorado communities.
He called companies’ attempts to move cases to federal court “a delaying tactic designed to avoid addressing their actual responsibility for climate harms affecting communities across America .”
Attorneys for Suncor and Exxon argued in their Supreme Court petition that the 10th Circuit’s finding conflicts with rulings from other courts.
Disputes between federal appeals courts, also known as circuit splits, are one factor that could trigger Supreme Court review. A panel of 8th U.S. Circuit judges heard oral arguments in March in a separate climate case in Minnesota. Circuit Court of Appeals appeared sympathetic to industry’s jurisdictional argument but questioned whether such a finding would conflict with the 10th Circuit’s ruling.
Industry attorney Kannon Shanmugam told the court that the 10th Circuit is already at odds with an earlier decision by a federal appeals court in New York. He cited a 2021 ruling by the 2nd U.S. Circuit Court of Appeals affirmed dismissal of New York City’s lawsuit seeking compensation from five fossil fuel companies for climate change damages.
“I think, quite frankly, there’s a very high likelihood that sooner or later these issues will end up at the Supreme Court,” Shanmugam, a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP said at the time (Climatewire, March 16).
The 8th Circuit has yet not reached a decision in Minnesota’s case.
In Suncor’s petition in Colorado, Shanmugam and other lawyers noted that the 2nd Circuit had ruled that climate change claims must have been brought under federal law. They stated that the question before Suncor and Exxon was whether municipalities could use state tort law in order to hold multinational oil companies liable for damages caused by global greenhouse gas emission .”
They wrote that the court had “unanimously determined that “the answer is “no”” and that claims seeking to redress global climate change were “the quintessential illustration of when federal commonlaw is most necessary .'”
Climate advocates argue that there is no circuit splitting and that New York City’s case differs because it was originally filed in federal court and not state.
” Every appeals court that examined the relevant cases came to the same conclusion: Climate accountability lawsuits brought in state court belong there,” stated Richard Wiles, president and CEO of the Center for Climate Integrity. “This is simply Exxon’s latest attempt to delay justice and escape accountability.”
Reprinted from E&E News with permission from