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Colorado Judge Rejects Oil Companies’ Attempt to Move Climate Case

January 28, 2021 Filed Under: Colorado Lawsuit, Liability Litigation

Suncor hoped to move a Colorado climate case to a friendlier court in Denver
By Karen Savage

A Colorado climate liability lawsuit brought by the city and county of Boulder against ExxonMobil and Suncor will proceed in Boulder County Court, a judge ruled this week.

Boulder, along with the county of San Miguel, alleges that Exxon and Suncor have known for decades that their products contribute to climate change, but deliberately downplayed that risk to policymakers and the public.

Exxon and Suncor have tried repeatedly to thwart the suit, including by trying to get it moved to Denver, instead of where the suit was filed.

Boulder County District Court Judge Judith LaBuda strongly rejected Suncor’s latest attempt to argue that the entire case should be heard in Denver based on a contract with the county that was updated after the case was filed.

Suncor, a Canadian oil company, operates a refinery in Commerce City, which is located in San Miguel County. The clauses the company relied upon were inserted into an asphalt supply contract the company has with the county.

“Suncor USA was prohibited from directly communicating with San Miguel County about any matter related to this lawsuit, let alone binding it to a venue-altering contract provision,” LaBuda wrote in the ruling, which was released Monday.

LaBuda in the same ruling granted a request by Suncor to have certain claims brought by San Miguel heard in San Miguel County, where the alleged harms occurred.

That means portions of the case, which was filed jointly by the three communities, will be heard in different venues. Because ExxonMobil did not join Suncor on the motion, San Miguel County’s claims against Exxon will continue to proceed in Boulder County.

“The court here properly ruled that claims for climate injuries can be heard where the injuries occur, rather than in the companies’ chosen forum—and soundly rejected Suncor’s tactics,” said Marco Simons, general counsel for EarthRights International, which is representing the municipalities in this case. “We do believe that it makes sense to hear the whole case together, however, and we continue to review this decision.”

In the suit, which was filed in 2018, the communities say the companies violated state laws involving public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy. They are seeking compensation from the companies to pay for the costs of climate change impacts.

LaBuda made plain her disdain for Suncor’s attempt to influence the venue.

“Because Suncor USA and San Miguel County were adverse litigants at the time the [updated contracts] were signed, Suncor USA had a professional obligation to communicate through counsel about all litigation-related matters,” LaBuda wrote.

“Suncor USA failed to alert counsel for San Miguel County that they included litigation-affecting language in the contracts but rather presented the contracts to a San Miguel County representative who was not involved with this pending litigation,” LaBuda added. “Suncor USA knew or should have known that the representative had not discussed the issue with counsel representing San Miguel County in this underlying litigation because Suncor USA themselves had not alerted opposing counsel of the inserted provisions.”

This is not the first allegation of improper communication by the fossil fuel companies named in the suit. Two Exxon public relations strategists in 2019 posed as reporters in an attempt to interview Simons.

At the time, the strategists—Michael Sandoval and Matt Dempsey—were employed by FTI Consulting, a firm long tied to Exxon and the oil and gas industry. The duo are also listed as writers for Western Wire, a website by the Western Energy Alliance, a regional oil and gas association of which Exxon was a member as recently as 2019.

Their call was potentially a violation of ethics rules for both the legal and public relations industries, and appeared to be a fishing expedition for information about the Colorado communities.

In light of the recent ruling, San Miguel County attorney Amy Markwell said the county is looking forward to holding the companies accountable for damage they have done to the climate.

“We are pleased that the court saw through Suncor’s attempt to use a routine supply contract to affect this litigation,” Markwell said in a statement.

Boulder County and the City of Boulder said they are pleased that Exxon and Suncor will be judged by a jury of local residents. 

“After a year of climate-fueled wildfires and poor air quality, it is clear that the climate crisis is profoundly affecting our communities.”

Filed Under: Colorado Lawsuit, Liability Litigation

Biden’s DOJ Could Help Swing Momentum Around Climate Cases

January 28, 2021 Filed Under: Baltimore Lawsuit, Liability Litigation

President Joe Biden marks shift in DOJ stance on climate cases
By Karen Savage

Municipalities seeking to hold fossil fuel companies accountable for their role in climate change could have a new ally in the federal government, as the Biden administration takes a sharp turn from its predecessor.

President Biden has already announced significant action on climate change, including rejoining the Paris Climate Agreement, halting the sale of new oil and gas leases on federal land and water, ending fossil fuel subsidies, and prioritizing environmental justice. He has vowed to incorporate climate considerations into all government decisions.

It is already a sea change from President Trump, who once called climate change a “Chinese hoax.” Fossil fuel companies facing climate change-related litigation could also count on the backing of the federal government. The assistant solicitor general argued on the companies’ behalf before the Supreme Court in mid-January in Baltimore’s climate suit. DOJ attorneys filed amicus briefs in support of the energy giants sued by Rhode Island, San Francisco and Oakland.

“I am confident that the new administration will be evaluating these cases in a far different way than the Trump administration did,” said John C. Cruden, who served as assistant attorney general for the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD) for the Obama administration.

That could provide a boost for the municipalities, which are seeking to force fossil fuel companies to pay for the damages associated with climate change, which could cost billions, if not trillions of dollars. 

“One of the first issues the administration will face is a review of the oral argument made before the Supreme Court on January 19 in the case of [City of Baltimore v. BP],” Cruden said.

Just a day before Biden’s inauguration, Assistant U.S. Solicitor General Brinton Lucas argued in favor of ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies during a Supreme Court review of a legal technicality related to the scope of appellate review. 

Biden has appointed Elizabeth Prelogar as acting solicitor general until a permanent one is confirmed. Prelogar is expected to make key decisions regarding the DOJ’s initial approach to pending litigation.

It’s likely too late for the federal government to rescind its previous support for the fossil fuel company defendants in Baltimore’s suit, even if Prelogar and the DOJ were to completely reverse position. 

“It is exceedingly difficult to change positions or impact past oral arguments,” Cruden said.

Pat Parenteau, a professor of environmental law at the Vermont Law School, said it’s not unusual for the DOJ to review—and sometimes change— its position in litigation after a change in administrations, but agreed that for Baltimore, that review comes too late.

“The [acting solicitor general] can’t take back what [DOJ] has said in its brief and oral argument in the Baltimore case,” Parenteau said.

Prelogar or her successor could more easily change the DOJ’s position in cases where the department has filed amicus, or friend-of-the-court, briefs in support of the companies, including  cases filed by Oakland, San Francisco, and Rhode Island against Exxon, BP, Shell, Chevron, and ConocoPhillips. 

“The Biden-era solicitor general could send a letter to the court withdrawing the government’s brief,” Cruden said, adding that with the court’s permission, the DOJ could also substitute a new brief in favor of the municipalities. 

The new administration has even more options in a slew of cases in which  the DOJ hasn’t gotten involved. 

“The Biden administration could decide to file amicus briefs in support of the plaintiffs as the cases move forward, or just stay out and let the lower courts sort it out,” Parenteau said.

One thing is certain; Prelogar and the DOJ will have a full plate. 

A recent executive order said the Biden administration policy will be “to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.” 

To that end, Biden ordered “all executive departments and agencies to immediately review and … take action to address … actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.” 

The order prompted the Environmental Protection Agency (EPA) to ask the DOJ to pause litigation related to rules and regulations issued under the Trump administration.

“We have never seen anything like what we’ve seen with Trump reversing so many environmental rules and policies, all of which are in litigation,” Parenteau said. “I can’t recall EPA asking the DOJ to freeze every single case until it has a chance to decide what it intends to do with each action that has been challenged.” 

Filed Under: Baltimore Lawsuit, Liability Litigation

Supreme Court Questions Oil Companies’ Tactics to Shake Climate Cases

January 19, 2021 Filed Under: Baltimore Lawsuit, Liability Litigation

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).

[Read more…]

Filed Under: Baltimore Lawsuit, Liability Litigation

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Justice Dept. to Argue on Side of Oil Companies in Supreme Court Hearing

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