The Climate Docket

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.” 

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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