A federal appeals court judge peppered Minnesota’s outside counsel with questions about the state’s climate lawsuit against ExxonMobil and others in a hearing over whether the case belongs in state court, at one point suggesting the complaint wasn’t drafted carefully enough to avoid federal jurisdiction.
Attorney Richard Sher, who represents Minnesota under a contingency-fee agreement that would give him a share of anything the state wins, told a three-judge panel of the Eighth Circuit that Minnesota limited its claims to allegedly deceptive marketing by the oil industry that misled consumers into purchasing more fossil fuels than they otherwise might. He denied Minnesota was seeking money for damages caused by emissions that came from outside the state, saying “science” can determine the damages caused strictly by greenhouse gas emissions and warming within Minnesota’s borders.
Eighth Circuit Judge David R. Stras sounded skeptical during the March 15 hearing.
Minnesota’s complaint “mentions the words greenhouse gas, air pollution emissions and climate change more than 300 times, while at the same time …there’s only a single alleged misstatement from David Koch supporting the claims,” said the judge, a 2018 appointee by President Donald Trump. “So I don’t quite know how you can say this is not about interstate pollution.”
Minnesota AG Keith Ellison is relying on private lawyers from Sher Edling, a law firm that has earned millions of dollars in fees from pollution lawsuits, as well as lawyers paid by a foundation funded by billionaire Michael Bloomberg to prosecute the state’s case. Having lost significant prior cases alleging public nuisance, Sher Edling retooled its legal strategy to accuse oil companies of misleading consumers with statements questioning human-induced global warming or failing to publicize widely available climate science that internal documents suggest they were also aware of.
Government plaintiffs like Minnesota are fighting hard to keep their lawsuits in their own courts, since they might stand a higher chance of convincing juries to award damages from out-of-state corporations.
ExxonMobil attorney Kannon Shanmugam told the judges the case belongs in federal court because federal common law governs interstate and international pollution. While the U.S. Supreme Court has repeatedly warned federal courts not to intrude on purely state-law cases, he said, judge-made federal law is highly developed in matters involving air and water pollution.
“If these sort of cases are allowed to proceed in state court, states will use them to regulate not just state activity but nationally or internationally,” he said.
Sher said Minnesota’s complaint had been drafted carefully to “cabin” its claims entirely within state consumer fraud law.
Minnesota “musty prove at trial there was deception, and it mattered,” he said. “If we fail in that proof, it doesn’t matter how many emissions there are, we have no proof, we have no claim and no recovery.”
There is “federal common law in the background,” said Judge Stras, however, as well as the federal Clean Air Act. And jurors would be asked to perform a risk-benefit analysis between the harms of global warming and the benefits of using fossil fuels, he said, just like the Environmental Protection Agency does when it proposes new rules.
“It seems like this entire case is about federal law,” the judge said.