By Karen Savage

ExxonMobil, three Koch Industries entities and the American Petroleum Institute (API) want Minnesota’s climate fraud lawsuit against them moved to federal court.

In a notice filed Monday in U.S. District Court, attorneys for the companies said the suit, which was filed last month in Minnesota state court, is an attempt by the state to usurp federal national and international energy policy and environmental protection statutes. Fossil fuel companies have used this same reasoning in trying to move more than a dozen similar climate lawsuits to federal court, and so far all of them have been sent back to state courts.

The companies’ strategy has been to claim the suits, including Minnesota’s, belong in federal court because they involve federal statutory, regulatory and constitutional issues. Minnesota, like the other municipalities, however, claim their charges involve state statutes and should be heard in state courts. Minnesota’s suit includes claims of fraud, failure to warn and alleges multiple violations of state law.,

The companies also maintain that Minnesota’s suit, like the others, is part of a conspiratorial plot by activist lawyers to “force a political and regulatory agenda” on climate change.

“While the attorney general is entitled to disagree with particular statements about climate and energy policy, he is not entitled to use state power to suppress speech and deter free association as part of a coordinated campaign to change federal climate and energy policy,” attorneys for Exxon, who were representing all the defendants, wrote in the notice.

Minnesota Attorney General Keith Ellison has emphasized he is not attempting to hold the companies accountable for climate change itself, but is charging the companies with consumer fraud, deceptive trade practices and false advertising for their decades-long deception about their role in climate change.

Ellison is seeking damage for harm, is asking Exxon, the API and Koch Industries to make all of their climate change-related research available to the public and is seeking an injunction to stop the defendants from further deception of Minnesota residents.

Ellison is also asking the court to order the companies to fund a campaign to educate the public about the risks their products pose to the climate. The companies claim he is overstepping his role.

“In keeping with his intent to unduly influence the public debate over climate change, the attorney general seeks to compel defendants to fund a ‘public education’ campaign promoting the attorney general’s viewpoint on disputed questions of public concern,” Exxon’s attorneys wrote in the motion.

An overwhelming majority of climate scientists agree that the burning of fossil fuels contributes to climate change, which is an existential risk to the planet. Although narrowing in recent years, a consensus gap between the views of scientists and those of the general public has been attributed to disinformation campaigns funded by the fossil fuel industry for several decades. 

The companies say Minnesota’s case is “neither about consumer protection nor properly brought under state law.” 

Most of the companies’ arguments, however, have already been rejected by federal judges in Massachusetts, Maryland, Colorado and California and have been upheld on appeal.  But the companies are trying again, claiming the case raises federal issues concerning transboundary pollution, foreign relations, and arises from actions in the navigable waters of the United States; is effectively a class action suit which should be heard in federal court; and falls under the Federal Officer Removal Statute—which gives federal courts jurisdiction over civil actions directed at the United States or any federal official.  

These arguments in the Minnesota case mirror those used in a similar motion filed last week by ExxonMobil, BP, Chevron, and Shell, who want Washington D.C.’s climate deception lawsuit against them moved to federal court.

Fossil fuel companies have repeatedly fought to have the nearly two dozen climate-related cases filed against them moved to federal court, where they believe the cases are more likely to be dismissed. Thus far, almost all of them have been remanded back to state court by federal judges, who have decided they involve state law claims and do not involve federal issues.  

Minnesota will have an opportunity to reply and oral arguments will likely be held later this year.