The Supreme Court on Tuesday grappled with an audacious climate-change lawsuit from the city of Baltimore, which seeks millions of dollars for damage allegedly caused by energy providers.
The city is suing ExxonMobil, Chevron, Shell, BP, and 20 other energy companies, citing strains on the city's electric grid and the growing risk of extreme floods in low-lying neighborhoods and its popular inner harbor. Baltimore's case is one of two dozen brought by states, counties, and cities that make similar claims.
But pro-industry groups counter that the lawsuits are part of an orchestrated campaign to strong-arm a leftwing climate agenda through friendly forums. The goal, they say, is to extract settlement payouts to bankroll municipal projects or coax energy producers into supporting new regulations by unwelcome disclosures before trial.
"Success for this national litigation campaign is not about proving legal or factual allegations, but trying to leverage their ability to file and sustain lawsuits in state courts for national, extrajudicial purposes," a brief supporting the defendants reads, citing Washington Free Beacon reporting.
Rhode Island, like Baltimore, is suing a group of energy providers for climate-related harms. The oversight group Energy Policy Advocates obtained records from Rhode Island state officials under freedom of information laws showing that one goal of the lawsuit is to secure a "sustainable funding stream" for state spending priorities. Rhode Island's lawsuit was litigated by the same lawyers representing Baltimore in Tuesday's Supreme Court case.
Tuesday's dispute will help determine where those lawsuits are decided. The corporate defendants want the case removed to federal court, where lawsuits like Baltimore's have floundered in the past. The plaintiffs want to proceed in state judicial systems, where they have something like a home-field advantage.
Past efforts to bring climate-change claims against greenhouse-gas emitters in federal court have been unsuccessful. An eight-state coalition sued utility providers over their carbon emissions in 2004, arguing that their contributions to global warming were a "public nuisance." A unanimous Supreme Court quashed the case in 2011.
Similar claims against similar defendants have cropped up in years since, but they've come in state court. Industry-aligned groups say it's an obvious end run around the Supreme Court and its 2011 decision.
"The new generation of climate nuisance suits, just like its predecessor, ask the courts to substitute their authority for that of the political branches of government on matters of policy," Energy Policy Advocates wrote in a brief to the justices. "Such suits seek billions of dollars in revenues for ambitious political spending programs, as well as distribution to preferred constituencies."
The corporate defendants tried to move Baltimore's case to federal court after the city filed its lawsuit in state court in 2018. U.S. District Judge Ellen Hollander denied their request and sent the lawsuit back to the Maryland courts. The companies appealed, but a federal appeals court upheld Hollander's decision, saying it had limited purview to review her decision.
The question before the justices is whether the appeals court is right about the scope of its review. Both sides believe that the answer could be decisive for Baltimore's lawsuit, and many more like it.
"The perception is that state courts may be more protective of state prerogatives and thus may be more willing to hold fossil fuel companies liable under state law," Southern Methodist University law professor James Coleman told the Free Beacon.
The companies have asked the Supreme Court to go farther and direct that these cases should be resolved in federal court. Even if the justices don't go that far, they could still put Baltimore's case on a path to defeat, as they have with other daring environmental lawsuits. For example, a group of adolescents sued the federal government for ignoring the dangers of climate change in 2015. Just before the case went to trial in 2018, the Trump administration asked the Supreme Court to dismiss the suit or at least put things on hold.
The Court declined to do so, but it telegraphed the plaintiffs' possible defeat, describing their claims as "striking" and questioning whether courts could even hear them. The Ninth U.S. Circuit Court of Appeals tossed the case in 2020.
A decision in Tuesday's case is expected by the summer. The case is No. 19-1644 BP PLC v. Mayor and City Council of Baltimore.