WASHINGTON (Legal Newsline) - Oil companies have made their final plea for help from the U.S. Supreme Court as they battle a Hawaii ruling that kept alive a lawsuit that seeks to hold them liable for the effects of climate change.
Defendants like Exxon and Chevron on Christmas Eve replied to a brief filed by the Biden Administration through U.S. Solicitor General Elizabeth Prelogar, who urged SCOTUS to allow local and state governments who have allied with private lawyers working on contingency fees to sue the oil industry.
At issue is whether state court judges should have the power to essentially impact the international energy market. Twenty Republican state attorneys general argue the Hawaii case involves questions of interstate and international law that can only be decided by Congress or in federal courts.
The Supreme Court is expected to soon decide whether it will hear the case.
“The Hawaii Supreme Court’s decision flatly contradicts U.S. Supreme Court precedent and other federal circuit court decisions," said Chevron lawyer Theodore Boutrous, Jr., of Gibson, Dunn and Crutcher.
"In dismissing a nearly identical lawsuit, the Second Circuit held, ‘such a sprawling case is simply beyond the limits of state law.’ The Supreme Court should grant review now to prevent pointless harm to our nation’s energy security.”
Years ago, two separate federal judges dismissed some of the earliest-filed of these cases, finding it inappropriate to ask courts to decide issues of international energy policy. Those dismissals were undone by the U.S. Supreme Court later when it held the cases belong in state courts around the country.
Lawyers at firms like Sher Edling filed their complaints to plead violations of state consumer protection and public nuisance laws. In Hawaii, the state Supreme Court has allowed their case to move past a motion to dismiss, leading to Big Oil's appeal.
The defendants' argument got some ammo last year when a Baltimore judge tossed the city's case, finding the lawsuit "is entirely about addressing the injuries of global climate change" and not about a "deceptive misinformation campaign."
The defendants point also point out that the solicitor general's brief concedes they may ultimately prevail on the argument that the Constitution precludes the plaintiff's state-law claims seeking damages for interstate and international greenhouse-gas emissions.
"In addition, the Clean Air act preempts claims for transboundary pollution under a traditional preemption analysis," the defendants' brief says.
"The government acknowledges that the Act may 'limit the scope of respondents' claims or the relief that could be granted' but it ultimately takes the position (without elaboration) that the Act does not 'categorically preempt respondents' claims.'
"That position, the government acknowledges, is a reversal from its earlier position that analogous suits were preempted by the Clean Air Act. The government's only explanation for its about-face is the implausible assertion that it did not previously consider that some of the claims were based, in part, on alleged deception."
The claims of consumer deception are ludicrous, legal scholars Richard Epstein and John Yoo argued 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 Videtta 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.
"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," she wrote.