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

By Karen Savage

The acting solicitor general will be allowed time to argue in support of ExxonMobil, Chevron, Shell, BP and nearly two dozen other companies next week during oral arguments before the U.S. Supreme Court, which has agreed to review a technical ruling by the Fourth Circuit in a climate liability lawsuit filed by Baltimore.

The high court granted the request Friday, after Acting Solicitor General Jeffery B. Wall requested he be allowed to use 10 minutes of the fossil fuel companies’ time, which the energy giants have agreed to cede. 

“The United States and its officers are frequent litigants, and it therefore has a significant interest in the proper application of statutory provisions governing federal appellate jurisdiction,” Wall wrote in a motion filed last month. 

Pat Parenteau, a professor of environmental law at the Vermont Law School, said the granting of Wall’s request by the Supreme Court  isn’t unusual—even considering Wall will likely be out of that post two days later when President-elect Joe Biden is inaugurated and begins the process of installing his own administration.  

“It’s fairly common for the court to invite the views of the solicitor general and allow time at oral argument if the petitioner agrees to take it out of their time,” Parenteau said.

It’s still unclear who Biden will tap for solicitor general, however, his consideration of David C. Frederick—an attorney who represents Shell in several climate change-related cases, including Baltimore’s—has drawn fire from climate activists, the Huffington Post has reported.

“The Shell optics are not good and there are lots of highly qualified and squeaky-clean alternatives,” Parenteau said.

Frederick and his firm, Kellogg, Hansen, Todd, Figel & Frederick, were listed as counsel for Shell in a brief filed Friday by the companies, which reiterated their contention that the Supreme Court should expand its review of Baltimore’s case. The fossil fuel companies want the high court to determine whether dozens of climate cases filed by municipalities across the country belong in state court, where they were filed, or in federal court, where the companies think they will be dismissed based on prior precedent.

“The court should exercise its discretion to consider whether respondent’s claims necessarily arise under federal common law and are thus removable,” the companies wrote in a brief.

“That additional ground for removal is relevant to determining the appropriate disposition after deciding the question presented, and its resolution here is warranted in light of the sheer number of climate-change cases in which that ground for removal is currently being litigated—including several in which petitions for writs of certiorari have recently been filed in this Court.”

Baltimore says the Supreme Court should affirm the Fourth Circuit’s ruling that the case belongs in state court and says the high court should stick to the narrow issue it agreed to review. 

“The court ‘strongly disapprove[s of] the practice of smuggling additional questions into a case after [it] grant[s] certiorari,’” Baltimore told the court, citing prior precedent. 

It “should reject petitioners’ effort to do so” now, the city added.