WASHINGTON (Legal Newsline) - A Washington, D.C., federal appeals court won't put a hold on climate change litigation filed by the district's attorney general through private lawyers working on contingency fees.
Exxon and other oil companies asked for a stay while they awaited the outcome of intervention by the U.S. Supreme Court. Other governments around the country have filed similar litigation blaming the energy industry for the "public nuisance" of climate change, and the cases have been stuck for years on whether they should be heard in federal courts or state.
Federal courts are likely to be more favorable to the defendants, but they have also sent the cases to state courts because of the manners in which the complaints were crafted to allege state law violations.
The U.S. Court of Appeals for the D.C. Circuit on Jan. 30 ordered the defendants' to file their opening brief on the remand issue by March 1 instead of pushing pause on litigation there.
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.
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. D.C. 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,” D.C. 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, D.C. said.