By Karen Savage
ExxonMobil and Suncor are asking the Supreme Court to reverse a ruling by the Tenth Circuit sending a climate liability suit filed against them by three Colorado communities back to state court.
In a petition filed earlier this month, Exxon and Suncor argue that since the high court has agreed to review a ruling by the Fourth Circuit in a similar case filed by Baltimore against several fossil fuel companies, it should not act on their request until it rules in that case.
Exxon and Suncor say both cases involve “materially identical facts.” They are asking the court to rule in favor of the companies in the Baltimore case, which is set for oral argument on Jan. 19, and to then “grant the petition in this case and dispose of it.”
In both instances, the fossil fuel companies maintain the appellate courts erred by not reviewing all of their reasons for wanting the cases heard in federal court.
Pat Parenteau, a professor of environmental law at the Vermont Law School, said he is not surprised by the filing and said he wouldn’t be surprised if the companies being sued by Rhode Island file a similar petition.
“The strategy is to emphasize the importance of consolidating these cases by issuing a sweeping decision that vests the federal courts with exclusive jurisdiction over all claims related to climate change damages,” Parenteau said. “That would be an unprecedented usurpation of the authority of state courts to adjudicate tort cases based on state common law.”
The Colorado case was filed in state court in 2018 by the City of Boulder and the counties of Boulder and San Miguel, claiming Exxon and Suncor violated state laws involving public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act and civil conspiracy.
As has been the pattern in dozens of cases filed against them by municipalities across the country, the companies moved the case to federal court, where they think they have a better chance of shaking it. The Tenth Circuit later upheld a district court ruling that the case belongs in state court, where it was filed.
Similarly, Baltimore filed suit in Maryland state court in 2018 alleging ExxonMobil, Chevron, Shell, BP and several other fossil fuel producers and distributors violated multiple state laws, including its consumer protection law. In that instance, the Fourth Circuit ultimately upheld a lower court ruling that the case belongs in state court.
At issue is whether the appellate courts have properly reviewed the lower courts’ jurisdictional rulings.
The energy companies initially presented several arguments for having the cases heard in federal court. If presented alone, those arguments are ineligible for appellate review, however the companies contend that they are all eligible for review when presented along with an argument based on the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official. The companies have claimed that because they sold or extracted fossil fuels under government contract, they operated as federal officers.
“These companies are doing everything they can to delay any consideration of their liability for climate change harms,” said Marco Simons, general counsel of EarthRights International, which is representing the Colorado municipalities.
“They’ve been fighting for over two years about what court should hear this case, while communities continue to suffer the impacts of climate change—Colorado faced its worst wildfires in state history this summer—without sufficient resources to respond to the problem.”