The Climate Docket

By Karen Savage

U.S. Supreme Court justices appeared skeptical of fossil fuel industry arguments in a hearing on Tuesday on an appeal that could determine whether a wave of climate change-related lawsuits filed against the industry by municipalities across the country will be heard in state or federal courts. 

The high court had agreed to decide on a legal technicality about the scope of appellate review in a case filed by Baltimore against ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies in Maryland state court in 2018. The justices appear to have brushed off a request by the fossil fuel companies to expand its review to consider whether Baltimore’s case and more than two dozen others like it should be heard in federal court.

The arguments revolved around a little known law—the Federal Officer Removal Statute—that the industry is using to claim it was acting as an officer of the federal government because some of its oil production is on land leased from the federal government. It’s an argument that multiple appeals courts have rejected, but the fossil fuel industry wants the Supreme Court to not only allow it, but use it to make more of its arguments subject to appellate review.

“We believe that the plain language of [the statute] resolves the question presented and really does permit in an appellate court to review the entirety of a remand order where the ground for removal was the federal officer removal statute,” Kannon Shanmugam, an Exxon attorney with Paul Weiss Rifkind Wharton & Garrison who argued on behalf of the fossil fuel companies, told the court. 

Justice Clarence Thomas questioned whether the companies’ reasoning would result in parties “smuggling” otherwise unreviewable arguments into appellate court reviews. Justice Steven Breyer similarly reasoned that the companies’ interpretation of the statute could result in a flood of appeals.

“Parties will appeal on everything—and that means added time, added delay,”  Breyer said.

The matter will be decided later this year by eight of the justices. Justice Samuel Alito, who owns stock in ConocoPhillips and Phillips 66, recused himself from the case. Justice Amy Coney Barrett—whose father was a lawyer for Shell for decades, potentially working on some of the company’s federal lease agreements at the center of Tuesday’s arguments—did not recuse. Barrett’s father also held leadership positions with the American Petroleum Institute (API).

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By Karen Savage

With oral arguments set for next week before the U.S. Supreme Court in a climate liability lawsuit against the country’s largest oil companies, Justice Amy Coney Barrett, whose father was a Shell attorney for nearly three decades, has still not said whether she will recuse herself.

“My father worked at Shell Oil Company for many years, and while on the Seventh Circuit, in an abundance of caution, I have recused myself from cases involving those Shell entities with which he was involved,” Barrett wrote in her response to questions submitted by Sen. Sheldon Whitehouse as part of her nomination process.

As it stands now, Justice Samuel Alito, who owns stock in ConocoPhillips and Phillips 66, will recuse himself, leaving the court with a potential for a 4-4 split vote.  A recusal by Coney Barrett would eliminate that possibility. 

While the court’s decision involves a limited legal issue in Baltimore’s case against fossil fuel companies, it could decide the crucial point of whether all of the climate liability suits filed against the industry will be heard in state or federal court.

Coney Barrett’s potential conflict of interest stems from her father, Michael E. Coney, who in addition to working for Shell also held leadership positions with the American Petroleum Institute (API) for two decades. He served on its subcommittee of exploration and production law and twice served as its chairman. He was also chairman of the legal subcommittee of the API’s offshore operations committee and frequently reviewed and drafted comments on policies related to the Outer Continental Shelf (OCF).   

The API is the nation’s largest and most powerful fossil fuel trade association. Nearly all of the companies named in Baltimore’s suit—including Shell—are API members.

Baltimore filed suit in Maryland state court in 2018 against ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies, alleging that they knew for decades that their products drive climate change but deliberately failed to inform the public about those risks.  The city charged the companies with eight violations, including public nuisance, private nuisance, failure to warn and violations of Maryland’s consumer protection laws.

The Supreme Court’s ruling could determine the fate of Baltimore’s case, and the companies have asked it to apply its decision to many of the other climate change-related cases filed against them by municipalities across the country.

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