BALTIMORE (Legal Newsline) - For the first time, a state court judge has thrown out one of the climate change lawsuits brought against the energy industry by an alliance of government officials and private lawyers.
Baltimore's case made headlines when it reached the U.S. Supreme Court, as it and other plaintiffs around the country wanted the cases heard in their own state courts, where they have a greater chance of success. Notably, federal judges in New York and California had dismissed lawsuits there as improper attempts to regulate greenhouse gases.
But SCOTUS found in Baltimore's case that the artfully pleaded complaints that make claims for state law violations like public nuisance belonged in state courts.
Baltimore Circuit Court Judge Videtta Brown on July 10 found for defendants like Exxon and Chevron, despite how the complaints were structured.
"The Constitution's federal structure does not allow the application of state law claims like those presented by Baltimore," Brown wrote. "Baltimore's complaint is entirely about addressing the injuries of global climate change and seeking damages from such alleged injuries.
"The explanation by Baltimore that it only seeks to address and hold Defendants accountable for a deceptive misinformation campaign is simply a way to get in the back door what they cannot get in the front door."
The Hawaii Supreme Court reached the opposite conclusion in denying defendants' motion to dismiss there. It said the cases were about disinformation, not emissions. The U.S. Supreme Court is weighing whether to hear the case and has asked the Biden Administration for its thoughts.
The Baltimore decision is sure to catch the justices' eyes. Chevron's lawyer, Theodore Boutrous of Gibson, Dunn and Crutcher called Judge Brown's opinion "well-reasoned."
"The meritless state tort cases now being orchestrated by a small group of plaintiffs' lawyers only detract from legitimate progress toward a lower carbon global energy system," he said.
A group of 20 state attorneys general have backed the energy industry's plea to the U.S. Supreme Court. They say the lawsuits involve questions of interstate and international law that can only be decided by Congress or federal courts.
Oil companies scored some successes early on in climate litigation when federal appeals courts in New York and California ruled the federal Clean Air Act barred lawsuits over interstate emissions of greenhouse gases.
In a 2018 decision, for example, U.S. District Judge William Alsup dismissed lawsuits by San Francisco and Oakland, saying the scope of the legal theory developed by plaintiff lawyers was “breathtaking,” and would “reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.”
Private lawyers led by Sher Edling retooled their legal theories in the face of those defeats, recasting the claims of their government clients as involving violations of state, not federal, law.
The claims of consumer deception are ludicrous, legal scholars Richard Epstein and John Yoo argue in an amicus brief to the Supreme Court. Under Honolulu’s theory, the oil companies have damaged the city by conducting a “disinformation campaign” that caused consumers worldwide to burn more fossil fuels than they would have, had they known the true risks of global warming.
Honolulu claims the oil companies “are in possession of information on global warming of which the plaintiffs are ignorant,” Epstein and Yoo wrote. “But nothing could be further from the truth. Information about climate change is a matter of public knowledge and can be obtained from many different sources, each with its own distinctive perspective.”
Baltimore judge Brown said the litigation goes beyond the limits of Maryland law, or whatever state other cases are filed in. Most municipalities and states that have filed suit are near oceans, though Boulder, Colo., has also sued.
"When claims are based on out-of-state sources/emissions, the (Clean Air Act) preempts to the extent that the claims seek to regulate emissions," Brown wrote.