- The Washington Times - Thursday, February 16, 2023

When local governments sue oil companies over contributing to climate change, which courts have jurisdiction — federal or state?

That’s the question energy companies have petitioned the Supreme Court to answer, arguing for federal jurisdiction by saying that different state courts can issue divergent rulings based on location.

Suncor Energy and Exxon Mobil Corp. petitioned the high court last year over a lawsuit by local governments in Colorado. The justices have placed the petition on hold as they await input from the U.S. solicitor general.

“It’s very important that the federal courts hear these cases because this is an area that demands uniformity. Global warming is global,” said Ted Boutrous, a partner at the law firm Gibson, Dunn & Crutcher, which is representing Chevron Corp. in state and local climate lawsuits.

Chevron Corp. also is petitioning the justices to weigh in on a climate change case. The city of Baltimore has sued Chevron and a dozen other energy companies, accusing them of contributing to climate change that has made the city vulnerable to flooding.

That petition also is pending. It followed the high court giving the companies a narrow win in 2021 when the justices sent the case back to the lower court for reevaluation on a technical issue.

The companies’ new petition, though, gives the justices a chance to clarify where exactly such cases should be litigated.

There are also cases involving Rhode Island, Honolulu and California localities pending before the justices against oil producers.

In the Suncor/Exxon lawsuit, local governments in Colorado allege that the fossil fuel companies’ activities produce greenhouse gasses that have contributed to climate change and have caused harm to the localities. They claim the companies have flouted state nuisance laws as well as property, public health and consumer protections, among other violations.

According to the government’s court brief, the fossil fuel companies “concealed and/or misrepresented the dangers associated with the burning of fossil fuels despite having been aware of those dangers for decades.”

They say that move contributed to the burning of fossil fuels, creating increased carbon dioxide in the atmosphere, which subsequently forced local governments to provide money and services to maintain roads and fight fires.

The energy companies attempted to move the litigation to federal court, but the U.S. Court of Appeals for the 10th Circuit denied the request. It reasoned that in the wake of the Clean Air Act, state legal systems can govern claims over interstate pollution.

The companies told the high court that other appellate courts — like the 2nd Circuit — have sided with Exxon in a separate case brought by New York City. That circuit court said damages related to climate change belong in federal court, citing interests of federalism.

Other lawsuits have been brought by municipalities against big oil companies. In recent years, there’s been about two dozen of these types of actions.

The solicitor general’s office is expected to file its brief taking a side in the debate next month, according to Mr. Boutrous.

He said if the cases are allowed to proceed in state court, it would transform litigation and policy related to climate.

“We will be seeing state courts around the country with different views, different laws. And that wouldn’t be good for any of us in addressing climate change,” he said. “It’s all coming to a head in the Supreme Court.”

A spokesperson for the Justice Department did not immediately respond to a request for comment about the litigation.

Attorneys for the Colorado localities argue that circuit courts have uniformly rejected the argument for removing state claims to federal court, dismissing the claim that there’s a sincere circuit split on the matter.

“City of New York thus held that the suit was not viable because state law claims simply did not exist after having once been governed and preempted by federal common law; it did not hold that federal common law continues to govern such claims decades later,” they argued in their filing.

They urged the high court to not take up the case. It would take four of the justices to vote in favor of reviewing the dispute for the case to be scheduled for oral arguments.

Marco Simons, counsel for EarthRights International, who is representing the Colorado localities, said the oil companies have tried to delay the litigation by moving the cases from court to court.

“Although this delay merely postpones the companies’ ultimate liability, they are also seeking to keep the cases in federal court because they think they will have an easier time getting the cases dismissed. Indeed, they are openly arguing that the reason the cases should be heard in federal court is because federal doctrines require that the cases be dismissed. We strongly disagree; indeed, the law is clear that the cases cannot be moved to federal court simply to be dismissed,” Mr. Simons said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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