By Karen Savage
Among the various rolling disasters that filled 2020, climate change continued to loom large for communities facing its rapidly rising costs. More of them decided to file suit against the fossil fuel industry, and all of them await a potentially crucial decision by the U.S. Supreme Court.
That looming confrontation—which could decide the critical issue of whether municipalities will face these companies in state or federal court— hasn’t stopped the cases, nor has it stopped the suits from evolving.
Municipalities continued to file suits based on nuisance claims, but for the first time this year they were joined by several state attorneys general, who filed suits alleging fraud, deceit and violations of consumer protection laws.
“The really fundamental truth is that people don’t like to be lied to,” said Carroll Muffett, president of the Center for International Environmental Law. “The consumer protection cases really draw that out in really fundamental ways and the evidence is extremely compelling.”
Minnesota Attorney General Keith Ellison, who filed suit in June, became the first to include the American Petroleum Institute (API) when he accused the industry’s most powerful trade association—along with Exxon and three Koch Industries entities—of consumer fraud and other violations for their decades-long deception about their role in climate change.
Hoboken and Delaware also included the API, alleging that like the companies, the lobbying group knew for decades that their products cause climate change, but deliberately deceived the public about those harms.
That’s a significant shift, Muffett said.
“When you’re bringing API into play, what you’re really bringing in is not the individual act of the individual corporate defendants, but the things that they did together and in concert, and that is legally a very significant distinction,” Muffett said.
Filed just weeks after Minnesota and the nation were rocked by the police killing of George Floyd, Ellison’s suit detailed for the first time the disproportionate toll climate change is taking on low-income communities and communities of color.
In another new twist, Minnesota is asking the court to order the defendants to fund a public education campaign highlighting the risk their products pose to the climate. The state is also asking Exxon, the API and Koch Industries to make available to the public all of their climate change-related research.
Just days after Minnesota’s filing, Washington D.C. Attorney General Carl Racine filed a similar suit, alleging that ExxonMobil, BP, Chevron, and Shell violated the district’s consumer protection laws by engaging in a multi-decade, multi-million dollar public relations campaign to cast doubt on climate research in order to protect their profits.
“The real story this last year is not any single case,” Muffett said. “It is the staggering and growing weight of the cases, and how many times over and over again, the plaintiff cities and states are winning and the defenses being brought by the carbon majors companies are failing in fundamental ways.”
The Battle For Jurisdiction Continues
Thus far, the common battle in all of the suits filed since 2017 has been the fight over jurisdiction; whether the cases be heard in state court, where nearly all have been filed, or in federal court, where companies think they have a better chance of getting them dismissed.
That feud will likely be settled—at least in part—in January, when the Supreme Court hears oral arguments surrounding a legal technicality in a case filed by Baltimore that could impact all of the suits.
Baltimore filed suit in Maryland state court in 2018, charging ExxonMobil, Chevron, Shell, BP and nearly two dozen other companies with eight violations, including public nuisance, private nuisance, failure to warn and violations of Maryland’s consumer protection laws. The city is alleging that the fossil fuel companies knew for decades that their products drive climate change but deliberately failed to inform the public about those risks.
As they have done in nearly all the climate change-related lawsuits filed against them in recent years, the companies moved the case to federal court.
One of several arguments for federal jurisdiction presented by the companies is that because they operated with leases issued by the federal government, they were acting as “federal officers” and therefore are exempt from state laws.
That argument has been rejected by federal courts in several states—including Maryland, Rhode Island, Massachusetts, Colorado and California.
Generally, jurisdictional rulings are not eligible for appellate review, but those involving the question of federal officer removal are an exception. The Fourth Circuit, like other circuits in similar climate-related cases, reviewed and upheld the lower court’s ruling, but declined to consider the companies’ other arguments, which it said are not eligible for review.
“You can’t ignore the fact that you’ve now got three circuit courts—these are the second highest courts in the country—all concluding that these cases belong in state court,” Muffett said.
Still, the fossil fuel companies pushed back, petitioning the Supreme Court and arguing that the Fourth Circuit erred in not reviewing those other arguments. The court agreed to hear their appeal in October.
A ruling for Baltimore would likely keep the city’s case—and similar cases across the country—in state court.
Even if the question is settled in the fossil fuel companies’ favor, a jurisdictional victory isn’t guaranteed. The high court could ask the Fourth Circuit to review the additional arguments and the appellate court—and other circuits in similar cases—could still affirm the lower court’s determination that the case belongs in state court.
Perhaps weighing those odds, the companies in November asked the high court, which is set to hear oral arguments on Jan. 19, to expand its review to include all the outstanding cases.
“Given the number of climate-change cases pending across the nation, the court should confirm that this case and others like it were properly removed to federal court on the ground that federal common law necessarily governs claims alleging injury based on the contribution of interstate and international emissions to global climate change,” the companies wrote in a brief filed in November.
“It would take a profound show of judicial activism for the Supreme Court to give the petitioner companies what they’re asking for,” Muffett said, adding that he’s not surprised by the request.
“It’s reflective of what we’ve seen again and again, these companies going to really extraordinary legal maneuvers to keep these cases from reaching the merits.”
What to Watch in 2021
In 2021, all eyes will be on the Supreme Court ruling—with oral arguments scheduled for Jan. 19— as well as new filings and on existing cases as they move through state courts across the country.
When taken together with a few less talked-about 2020 developments, all could have a huge impact on climate change-related litigation, according to Muffett.
Muffett points to the filing of an amended complaint by Massachusetts Attorney General Maura Healey in her climate fraud suit against Exxon. Healey alleges that even amid crashing oil prices caused by the Covid-19 pandemic the oil giant continued to deceive residents in her state.
Muffett also said the recent lawsuit filed against Shell in the Netherlands by citizens and several environmental groups, who are asking the court to force the company to reduce its future emissions, is significant.
“If you look at the case against Shell in the Netherlands, what you’re seeing there is litigation that is starting to look at the business models of the companies, and ongoing deception in how those business models are being characterized,” Muffett said. “This is really important, when you recognize that there is growing recognition that companies are continuing to misrepresent the climate-related risks built into their business model.”
Muffett also pointed to a suit filed by Greenpeace against Walmart in December, alleging it deceived customers about the recyclability of its products.
“It demonstrates that the lessons from climate litigation are being learned in other spaces, and even more importantly from a climate context, again, the companies producing these plastics are the same fossil fuel companies by and large—its ExxonMobil, its Shell, it’s Chevron,” Muffett said, adding that fossil fuel companies are relying heavily on plastic as a major future revenue stream.
“We’re moving from a phase in which these companies are facing litigation for their past practices with respect to climate harms arising from their fossil fuel production, they’re facing litigation for how their future business models are being developed with respect to fossil fuels, and increasingly what we’re going to see is they’re going to be facing litigation for similar deceptive conduct and similar impact in the plastic space as well,” Muffett said.
“The entire future of these companies is going to be a future that is massively clouded by ever growing bodies of litigation,” Muffett added.
That realization has likely played a role in what many plaintiffs call an increasingly desperate array of legal strategies employed by fossil fuel companies 2020 to prevent cases filed against them from moving forward.
Perhaps the most notable is Exxon’s contention that Healey’s climate fraud suit against it is a SLAPP suit that infringes on its First Amendment right to express its “views” on climate change, which Muffett calls “ an extraordinary act of hubris.”
“It’s a ridiculous extension of the First Amendment arguments that Exxon has brought and largely failed to win on again and again,” he said.
If 2020 is any indication, the companies will continue to use the same tactics repeatedly in the New Year, against a growing list of opponents.