Ninth Circuit Nominee Has History of Defending Big Oil, Including in Liability Cases

By Dana Drugmand

An attorney who has defended the oil industry in high-profile climate and environmental cases, including the current crop of climate liability lawsuits, has been nominated by President Trump to fill a vacancy on the Ninth Circuit Court of Appeals.

Daniel P. Collins, a California attorney with the firm Munger, Tolles & Olson, has represented Royal Dutch Shell in previous and current litigation against fossil fuel corporations. Shell is among the companies being sued by a group of California communities trying to hold oil companies accountable for climate change-related damages. Certain aspects of those lawsuits are already being appealed to the Ninth Circuit, which covers California, the Pacific Northwest as well as Alaska and Hawaii.

Collins and two other conservative judges were initially nominated as Ninth Circuit judges last October, but their nominations expired because the last Congress had not acted on them. Trump re-nominated Collins and Los Angeles attorney Kenneth Kiyul Lee on January 30.

The Ninth Circuit is the largest appellate circuit in the federal court system with 29 judges. It currently has six vacancies in that court. Once the Senate takes up the nominations, they are likely to be confirmed because Republicans control the Senate. Both are opposed by the two Democratic senators from California.

Should Collins be confirmed, legal experts said he would likely be compelled to recuse himself from hearing any cases involving the fossil fuel industry. Collins defended Occidental Petroleum in a case brought by 25 indigenous Peruvians, in which the company eventually paid an out-of-court settlement for damages from widespread poisoning and contamination of their waterways and lands in the Amazon.

Collins also defended Shell in the case Native Village of Kivalina v. ExxonMobil et al. in which an indigenous Alaskan community facing displacement from coastal erosion and rising seas unsuccessfully sought damages from fossil fuel companies. And in a case against energy and utility companies brought by plaintiffs who lost their homes in Hurricane Katrina, Comer v. Murphy Oil et al., Collins was involved as counsel for Shell.  

“Judges have recused themselves where the mere appearance that they could not be impartial has been raised by a party based on their earlier representation of an opposing interest,” said Pat Parenteau, environmental law professor at Vermont Law School who has informally advised plaintiffs in some of the climate liability cases.

Collins’ bio on the Munger, Tolles & Olson website highlights his history representing Big Oil in climate cases: “Mr. Collins also successfully argued two major cases in the Fifth and Ninth Circuits that effectively brought an end (for the time being) to efforts to hold the energy industry liable in tort for injuries allegedly caused by global warming.”

More recently, Collins has continued to serve as counsel to Shell in climate liability lawsuits filed by the California municipalities. His name appears in court filings for the cases brought by California cities and counties as well as the suit filed by King County, Wash. The California cases are currently before the Ninth Circuit, which is set to decide whether the cases will be tried in state or federal court.

Parenteau pointed to statutory law on the federal rules of judicial conduct, which says a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” or has served as a lawyer in any capacity creating a conflict of interest in cases in front of that court.

“I don’t see how he could sit on any of the tort cases now pending before the Ninth Circuit because the claims are so closely tied to the claims that were at issue in the Comer and Kivalina cases that he boasts about winning for his oil company clients,” Parenteau said.

The nomination of Collins has been opposed by both California Senators Dianne Feinstein and Kamala Harris, who object to Collins’ judicial temperament.

“We were told that Mr. Collins has a history of taking strong litigation positions for no reason other than attempting to overturn precedent and push legal boundaries. This should be a concern to all senators,” they wrote in a statement.