The Supreme Court is poised to play referee on climate change lawsuits this term, with the justices being asked to decide where the court battles should take place.
Climate activists have sought to sue in state courts, where they hope to get better treatment and use friendlier environmental laws to go after energy companies in what critics call “climate lawfare.”
The companies, meanwhile, are fighting to have the cases heard in federal court, where they argue the issues are better suited.
The fights are a taste of what’s likely to be a steady stream of lawsuits by climate activists in the coming years looking to enlist the justices to target fossil fuel concerns.
“All of it is designed to do one thing,” O.H. Skinner, former Arizona solicitor general, told The Washington Times’ “Court Watch” podcast. “There is one game plan, which is [they] drive up the liability number big enough to force all of these companies into bankruptcy where they then get handed over — that is even more extreme than Bernie’s Green New Deal.”
The justices have already agreed to hear a case out of Louisiana where the state and several parishes sued oil companies, arguing their crude oil production during World War II caused climate damage to the coastline that now — decades later — demands recompense.
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The oil companies were sued in state court but argue they were acting as federal contractors during the war, so the disputes should be moved to federal court.
Federal law lets cases be removed to U.S. courts when they involve a federal officer or “any person acting under that officer,” and for actions “relating to any act under color of such office.”
“These cases belong in federal court,” the companies argue. “They involve efforts by local governments to sue federal contractors in state court, in part for actions undertaken to fulfill federal contracts.”
Lower courts have said the oil companies can’t show their oil production was sufficiently related to their federal contracts to have the cases moved to the U.S. courts.
Louisiana said there’s a reason the companies want out of state court.
“They ostensibly fear juries composed of residents along the Louisiana coast,” the state said in a filing.
The case is Chevron v. Plaquemines Parish, and oral argument is scheduled for Jan. 12.
The justices have yet to agree to hear the other climate case, Suncor Energy v. County Commissioners of Boulder County.
It involves a lawsuit brought by Colorado communities that say oil companies’ global activities have led to extreme summer heat, precipitation changes, more damaging wildfires, higher ground-level ozone, more disease, forest die-off and drought — in violation of state law.
The companies — with the Trump Justice Department’s backing — say it would be disastrous to let states exert control over energy activities well beyond their borders.
“Energy companies that produce and sell fossil fuels are facing numerous lawsuits in state courts across the nation seeking billions of dollars in damages for injuries allegedly caused by the contribution of greenhouse-gas emissions to global climate change,” the oil companies’ petition read.
“But as the court has recognized for over a century, the structure of our constitutional system does not permit a state to provide relief under state law for injuries allegedly caused by pollution emanating from outside the state.”
The Colorado localities told the justices not to hear the case, arguing state courts are a viable battleground.
“There is no constitutional bar to states addressing in-state harms caused by out-of-state conduct, be it the negligent design of an automobile or sale of asbestos,” lawyers for Boulder argued.
It would take four justices to vote in favor of hearing this dispute for oral argument to be granted.
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