WASHINGTON (Legal Newsline) - The U.S. Supreme Court’s apparent interest in one of the many lawsuits by government entities against the oil industry is no reason to halt the District of Columbia’s case while ExxonMobil appeals a federal court’s order remanding it back to district court, D.C.’s lawyers argued in an opposition brief.
The Supreme Court on Oct. 3 invited the U.S. Solicitor General to submit a brief on whether to grant certiorari in Boulder County's lawsuit against the oil industry, which the Tenth Circuit Court of Appeals remanded back to Colorado state court. ExxonMobil and other defendants argue such cases belong in federal court because they hinge on questions of federal regulation and transnational law.
State and local plaintiffs, often represented by private lawyers working on contingency, have successfully moved many of them back to presumably friendlier state courts.
The District of Columbia is represented by Sher Edling, which has recruited numerous other government clients as plaintiffs in climate litigation. In a Dec. 12 brief, the district argued against granting a stay while ExxonMobil appeals the remand of its case to the federal D.C. Court of Appeals, saying the oil company didn’t have much of a chance of winning relief from the Supreme Court.
“Their speculation about the meaning of the Supreme Court’s request for the Solicitor General to weigh in on their petition for certiorari is just that: speculation based on a series of hopeful assumptions and what-ifs that cannot justify the extraordinary remedy of a stay,” the district argued.
As for the chance a future D.C. court verdict against it would be rendered moot by the federal appeals court, the district said ExxonMobil “cannot show a strong likelihood of success in their appeal here because their arguments have failed everywhere.”
Plaintiff lawyers retooled their strategy in climate litigation after suffering major losses in federal court in New York and California. They shifted to theories based upon fraud and state consumer protection laws, arguing the oil companies misled consumers into using fossil fuels by downplaying their role in global warming.
The oil companies argue the federal government explicitly encourages oil and gas development as national policy and the governments suing them are some of the biggest users of fossil fuels, with large fleets of automobiles, trucks and buses.
Those arguments have failed to halt the tide of climate lawsuits, however. The district argued ExxonMobil has no right to complain its shouldn’t have to defend itself in multiple courts, saying it is already doing so elsewhere. “Moreover, the harm caused by Defendants’ deceptive conduct—and the deceptive conduct itself—is ongoing,” the district said.
Federal courts have remanded cases in Hawaii, Rhode Island, Maryland and Colorado back to state courts and the Third Circuit Court of Appeals explicitly rejected ExxonMobil’s argument a New Jersey case should be stayed pending Supreme Court review, the district said.