A Supreme Court win for Big Oil

It could have been worse, though -- especially considering Barrett's dad worked for Shell for 29 years.

A person holds a sign in support of Swedish environment activist Greta Thunberg in front of the U.S. Supreme Court. Photo by Alastair Pike / AFP / Getty Images.

The Supreme Court is dominating this week’s news cycle. That’s because yesterday, the high court announced it will hear a case that could undo or diminish Roe v. Wade, the landmark 1973 decision protecting a person’s right to choose.

As a person who once exercised that right, I can’t say I’m thrilled. But I’m also not surprised. This is exactly why Republicans pushed through Justice Amy Coney Barrett’s confirmation at the end of Trump’s presidency last year. Barrett’s history of advocating against abortion will make an outcome in their favor more likely, and limiting abortion access has always been one of their highest political priorities.

Another one of Republicans’ highest political priorities, though, is protecting Big Oil companies from anything that might threaten their profits. And though it wasn’t nearly as high-profile as the Roe news, the Supreme Court yesterday also delivered the GOP a small victory on that front.

It was also another piece of validation for confirming Barrett, whose father worked for the oil giant Royal Dutch Shell for 29 years. So in light of all that, I thought today we’d touch on the climate case that just passed through the high court, and its implications for the future of holding Big Oil companies accountable for climate change.

The climate case before the court

The climate case the Supreme Court issued a ruling on yesterday was one of about 20 that have been filed across the country seeking to make fossil fuel companies pay for the increasing cost of climate change. It was filed by officials in the city of Baltimore, which is facing billions of dollars in costs for projects needed to protect residents and infrastructure against rising seas and temperatures.

“These oil and gas companies knew for decades that their products would harm communities like ours, and we’re going to hold them accountable,” Baltimore City Solicitor Andre Davis told Baltimore Magazine back when the lawsuit was filed in 2018.

But since then, Davis hasn’t really been able to do much to try to hold the oil companies accountable. Over the last three years, the lawsuit has been caught up in wonky procedural questions raised by the oil giants—just like most of the 20 other lawsuits have.

The dispute, in a nutshell, is about which type of court should hear the case. Oil companies say it should be heard in federal court, which has been friendlier to the industry. Baltimore officials say it should be held in state court, because they’re suing the companies over alleged violation of state law.

It’s an unsexy question, but an important one when it comes to holding oil companies financially accountable for climate change. These type of lawsuits, after all, are the ones that got tobacco companies to pay out billions to the people they harmed with their products. The threat Baltimore’s climate lawsuit presents to Big Oil is thus as existential as the threat climate change poses to Baltimore.

So the oil giants need every technical advantage they can get. And they are happy to tie the case up in disputes over technicalities for as long as possible until they get them.

A narrow 7-1 ruling in favor of Big Oil

The oil companies won this round, but they didn’t win as big as they hoped. As Inside Climate News reports:

Although the high court sided with the industry, including oil giants Exxon, Chevron and Shell, the ruling fell far short of being a sweeping rebuke of the climate change lawsuits that have been filed by two dozen city, county and state governments, which the industry has been fighting for nearly four years.

The court’s ruling did not go to the heart of the claims made by Baltimore that the industry should be held financially responsible for damages to the city from sea level rise, extreme weather, flooding and heat waves related to climate change. …

Nor did the Court’s opinion support the industry’s wish that the case be tried in federal rather than state court, where the oil and gas interests had prevailed in earlier lawsuits that focused not on physical damages caused by extreme weather, but on considerations related to greenhouse gas emissions under the federal Clean Air Act. 

The Supreme Court instead sent the case back to the Fourth Circuit Court for further consideration of the industry’s arguments [that the case belongs in federal court]. 

There are also still many rounds ahead. Essentially, what the oil companies achieved with this ruling was time—that is, further delay of hearing Baltimore’s actual claims on the merits. Justice Sonia Sotomayor, the only justice to dissent in Monday’s case, implied that this was exactly what the oil companies were trying to do.

Sotomayor: ruling “rewards” Big Oil’s “near-frivolous” arguments

In her dissent, Sotomayor wrote that she feared the ruling would “reward” Big Oil for making endless “strained” and “near-frivolous” arguments for why their case should be in federal court instead of state court. “Meanwhile, Baltimore, which has already waited nearly three years to begin litigation on the merits, is consigned to waiting once more,” she wrote.

Still, the city of Baltimore is optimistic that eventually, Big Oil’s time will run out. The city’s Law Department told Law & Crime that Monday’s ruling was “little more than a speed bump in their litigation.”

“While this isn’t the outcome we wanted, we are fully confident that the city will prevail again when the remaining issues are considered by the Court of Appeals,” the city’s chief of the Affirmative Litigation Division Sara Gross told Law & Crime in an email, noting that the oil giants’ arguments were rejected in the lower court.

Gross noted that Big Oil tends to strike out when seeking to move state cases to federal court, in other cases like these.

“As U.S. District Judge Derrick Watson recently noted in the Honolulu and Maui cases, the defendants have ‘a batting average of .000’ in trying to remove cases like this to federal court,” she wrote.

In order words: it could have been worse—especially given the ideologically make-up and conflicts of interest present on the court.

Oil money flows through the court

Not only do conservatives have a 6-3 majority; two of the justices have close financial ties to the oil industry. Justice Samuel Alito owns stock in several oil and gas companies, and Justice Barrett’s father was an attorney for Shell for nearly 30 years—during the exact time Baltimore alleges the company was actively concealing what it knew about climate change from the public.

“Her dad’s role in maximizing Shell’s net revenue from drilling grew even as Shell’s internal documents show it knew burning carbon was changing our climate and he even sought tax benefits from its efforts to adapt its drilling platforms to survive sea level rise and bigger storms resulting from climate change,” Lisa Graves, former chief counsel for nominations on the Senate Judiciary Committee, told HuffPost.

Alito has recused himself from the case because of his conflicts, but Barrett has not. So while Monday’s decision gives Baltimore a chance to eventually argue its case on the merits, it doesn’t mean they’re out of the woods. If they or any of the other plaintiffs seeking to hold Big Oil accountable for climate change run into the high court again, those conflicts will still be there. They are lifetime appointments.


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