The Department of Justice quietly weighed in on litigation pending before the Supreme Court this week, siding with liberal cities and states that are seeking to force the nation's largest oil companies to pay billions of dollars in damages for global warming.
Solicitor General Elizabeth Prelogar filed briefs this week in two related cases: one brought by Honolulu officials in 2020 and another filed by Alabama and 18 other GOP-led states that are asking the court to block litigation against oil companies in California, Connecticut, Minnesota, New Jersey, and Rhode Island.
In the Honolulu case, the solicitor general urged the Supreme Court to reject the fossil fuel defendants' request for the court to "review and clarify" whether state law is able to impose the costs of global climate change "on a subset of the world’s energy producers." And in the Alabama case, Prelogar wrote that the Supreme Court should allow Democratic states to pursue their individual lawsuits against the various companies.
The briefs are just the latest instance of the Biden-Harris administration aligning itself with climate activists' punitive approach towards oil and gas companies. They also represent a blow to the fossil fuel industry as it continues to battle more than a dozen cities and states nationwide that—in addition to blaming oil companies for global warming—accuse the industry of covering up the impact of their products on the environment for decades.
Honolulu initiated its lawsuit in March 2020, listing oil majors BP, ConocoPhillips, ExxonMobil, Shell, and Sunoco, among others, as defendants. Last year, defendants were handed two significant losses—first, the Supreme Court said the case could remain in the jurisdiction of state courts, and second, the Hawaii supreme court rejected a motion to dismiss the case altogether.
That led the companies to appeal to the Supreme Court in February and, for the first time, ask the High Court to review issues surrounding the merits of the case.
"Rarely does a case of such extraordinary importance to one of the nation’s most vital industries come before this Court," industry defendants wrote in their February filing. "Energy companies that produce, sell, and market fossil fuels are facing numerous lawsuits in state courts across the nation seeking billions of dollars in damages for injuries allegedly caused by global climate change."
"This case presents the Court with its only foreseeable opportunity in the near future to decide a dispositive question that is arising in every climate-change case: whether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate," they continued.
Prelogar disagreed, writing this week that the Supreme Court lacks jurisdiction to review the Hawaii supreme court’s interlocutory decision last year.
Following Prelogar's brief, Theodore Boutrous, who serves as counsel for Chevron Corporation, reiterated that the Hawaii supreme court ruling "flatly contradicts U.S. Supreme Court precedent and other federal circuit court decisions." He added: "The U.S. Supreme Court should grant review now to prevent pointless harm to our nation’s energy security."
Prelogar also opposed Alabama's case, saying it was "not the right vehicle for addressing the validity of the defendant states’ claims" against oil companies. Alabama and the other Republican states had argued the cases threaten "equal sovereignty and our nation’s energy infrastructure."
The first-of-their-kind climate cases, meanwhile, date back years and have been filed by nine states, Washington, D.C., and Puerto Rico, meaning 25 percent of Americans live in a jurisdiction pursuing such litigation. While Democratic prosecutors are leading the lawsuits, in nearly every case, they are being assisted by the California law firm Sher Edling, which was founded in 2016 to wage war on oil companies via novel legal methods.
Since around the time of its founding, the firm has received nearly $14 million in donations wired through the so-called Collective Action Fund for Accountability, a shadowy pass-through group that isn't required to publicly disclose its donors. As a result, wealthy environmental donors are able to remain anonymous while funding the litigation that could dismantle the fossil fuel industry.
"What this looks like is liberal dark money groups getting their way under President Biden despite past Department of Justice precedent," said Alliance for Consumers executive director O.H. Skinner.
Proponents of the lawsuits, however, cheered the solicitor general's briefs and said there remains no legal basis for the Supreme Court to intervene.
"State and local governments are seeking to hold corporations accountable for lying about their harmful products, and state courts have the authority to hear those claims," Alyssa Johl, the vice president of legal and general counsel for the Rockefeller-funded Center for Climate Integrity, said in a statement.
"The justices should reject these meritless requests and allow communities to have their day in court to hold Big Oil accountable."