The Real Reason Big Oil Wants Climate Cases at the Supreme Court

Source: The Real Reason Big Oil Wants Climate Cases at the Supreme Court   BY AMY WESTERVELT

For more than five years now, fossil fuel companies have been arguing that the more than two dozen climate liability cases filed against them by counties, cities and states across the country belong in federal court as opposed to state court where they were filed. This seems like a minor administrative detail, I know. But it’s part of a bigger strategy, one that goes beyond the obvious point that they think they have a better shot of winning in federal court (in part because they’ve done it before, in the famed American Electric Power v Connecticut case back in 2011). Yes, there’s that precedent and yes, the Supreme Court is stacked with right-wing judges guaranteed to be friendly to the industry, and yes Amy Coney-Barrett’s dad working for Shell forever is a particularly obvious conflict of interest here. But in a filing this week, the fossil fuel defendants showed their real hand. It’s not about jurisdiction at all, it’s about free speech. (And yes, I have been yammering about this for years now, probably won’t stop any time soon.)

Here’s the deal: In 2018, the City of Boulder and the Boards of County Commissioners of Boulder and San Miguel Counties filed suit against ExxonMobil and Suncor Energy Inc. It was the first, and still only, climate liability case to focus on fire and drought rather than sea level rise and storm surge, and since it was filed, Boulder was the scene of some of the most terrifying fires the country has ever seen. In their complaint, the local governments argued that the fossil fuel company defendants “knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.” They asked the court for compensation for their past and future damages and for costs to mitigate climate change’s impacts and also sought remediation or abatement of the hazards by “practical means,” although they expressly did not demand the immediate shutdown of oil and gas operations (none of these suits have). The fossil fuel companies sought to have the case moved to federal court, the 10th circuit said nope it belongs in state court and last year the companies petitioned the Supreme Court to take up the case. Rather than decide whether or not to take up the case, the court asked the U.S. Department of Justice to weigh in with its opinion. The DOJ complied last month, backing the circuit courts (all of which have moved to keep the cases in state court), and discouraging the Supreme Court from interfering. Which of course doesn’t necessarily mean SCOTUS will comply, let’s not forget who we’re dealing with here. It would be unprecedented for the Supreme Court to ask for the DOJ’s opinion and then do the opposite, but this court is nothing if not unprecedented.

We don’t yet know whether the Supreme Court justices will decide to take this case up or not, but the brief Exxon and Suncor filed this week in response to the DOJ removes any doubt as to why it’s so important to get this case (or, really, any one of these cases) to the Supreme Court. Folks, they’re looking for the next Citizens United.