December 29, 2020

Senators Weigh in on Major SCOTUS Climate Case

Whitehouse, Cardin, Van Hollen, Blumenthal, Warren, and Markey: fossil fuel giants want to establish the standard of “too big to adjudicate”

Senators Sheldon Whitehouse (D-RI), Ben Cardin (D-MD), Chris Van Hollen (D-MD), Richard Blumenthal (D-CT), Elizabeth Warren (D-MA), and Edward J. Markey (D-MA) have filed a brief with the U.S. Supreme Court in a major case concerning the power of state and local governments to hold fossil fuel polluters financially liable for the damages caused by their products.  In hopes of avoiding potentially massive monetary judgments against it, the fossil fuel industry seeks to have the case, BP et al. v. Mayor and City Council of Baltimore, removed from state court to federal court, where it hopes its arguments will receive a more favorable reception.  The senators’ brief shows how the industry’s removal effort fits into a broader campaign to hamper the government’s ability to act on climate change.  If the Court rules in the industry’s favor, the senators write, the Justices will have bolstered fossil fuel polluters’ notion that claims against them are “too big to adjudicate.”

“The fossil fuel industry has tried to close every door—local, state, federal; legal, legislative, and administrative—to a solution to the climate crisis,” the senators write.  “Here, they invite this Court to ignore the precise question and statute at hand, and render them a larger result — one that would help them shut all state legal doors to remedies for the harms they have caused by their carbon emissions and by misleading about the harm.  In essence, they propose a novel political doctrine of ‘too big to adjudicate,’ to free appellants from bearing the consequences in state courts of their own polluting and misleading.”

In their brief, the senators reveal the array of anonymously-funded – or dark money – groups that appear in court as amici curiae to argue on fossil fuel companies’ behalf whenever the industry is threatened.  While much of their funding is hidden, clues point to close ties between the groups and the fossil fuel industry, such as use of identity-laundering organizations like Donors Trust and close associations with the Koch family donor network.  In this case, several of the pro-industry amici have received money directly from giant oil and gas companies, including appellants ExxonMobil, Chevron, and Marathon Petroleum.  Another has a former coal industry lawyer serving on its board.

The Court’s lax interpretation of its own rules for disclosure of amicus funders obscures potential conflicts of interest.  Supreme Court Rule 37.6 provides that amicus filers “shall indicate whether counsel for a party authored the brief . . . made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person or entity . . . who made such a monetary contribution to the preparation or submission of the brief.”  Yet the Court has interpreted that rule so narrowly that filers only need to disclose the origins of funds used in small expenses incurred in the final stages of preparing the brief, like the cost of printing and binding hard copies of the filing.

This allows for the appearance of a groundswell of support for the industry’s position, when in fact the amicus filers may be linked through common funding to litigants in the case and acting as one entity.  It also leads to the absurd outcome of major trade groups with large fossil fuel companies in their membership filing amicus briefs without disclosing whether they took money from litigants in the case. 

The senators write, “It may be expected that [American Petroleum Institute], an oil and gas industry trade association, would have members that are parties in this case.  The [U.S. Chamber of Commerce] and [National Association of Manufacturers (NAM)] purport to represent a broad base of our country’s business community, but they will not disclose here or elsewhere who all their members are; and they have not disclosed here or elsewhere which members had a role in making the policy and litigation decisions behind their participation in this case or in the array of climate-related cases in which they have appeared.”

But more than individual connections to fossil fuels is the pattern of activity by the amicus filers that extends beyond the courts.  The independent watchdog Influence Map has found the U.S. Chamber of Commerce and NAM – two amicus filers in the case – are the top two climate action obstructors in Washington, spending massive sums on lobbying, electioneering, and/or other influencing activities to fight against climate action.  And both groups appear in other courts to defend the fossil fuel industry on a regular basis.

The senators continue, “The fossil fuel-connected amici’s legal strategy here is an element of their political one.  They seek to prevent judicial action to reduce carbon pollution, because it would reduce demand for their donors’ products and intrude on their donors’ business model.”

The senators also push back on the industry’s argument that questions of fossil fuel liability are best left to elected branches of government.  The senators point to the long history of special interest influence over Congress and the executive, while the courts have historically been less susceptible to that influence. 

“History reveals a long battle between powerful influencers who want to bring government to their heel, at whatever cost to the public, and a public that needs its interests protected against the political might of those big influencers,” the senators write.  “Courts have an important role in this contest as the branch of government built to be less responsive to political might.”

The case before the Court originates in a suit filed against fossil fuel companies in Maryland state court by the Mayor and City Council of Baltimore.  The city sought monetary damages, civil penalties, and other relief for the damages to city infrastructures and the sweeping public health harms inflicted by fossil fuel pollution.  The fossil fuel companies sought to remove the case from the Maryland court to the federal district court.  Both the federal district court and the U.S. Court of Appeals for the Fourth Circuit rejected the industry’s removal arguments.  Now the Supreme Court will weigh in during the coming term.

A copy of the senators’ brief is available here.

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