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Over the past several years, dozens of cities and states have sued big oil companies, seeking to hold the producers of fossil fuels accountable for their role in causing climate change.
All of the cases follow more or less the same script: They claim that oil companies like Exxon and Chevron deceived the public by concealing their understanding of the devastating effects of global warming, and seek to make those companies pay for the billions of dollars in damages now being caused by rising seas and extreme weather.
So far, none of those cases has gone to trial. But this week, a closely watched case out of Hawaii took what could be a pivotal step toward the Supreme Court and have a cascading effect on the legal fight to hold fossil fuel companies accountable.
The case was brought by the city of Honolulu against Sunoco and other big oil companies in 2020. Last year, the Hawaii state supreme court ruled the case could go to trial. But a coalition of energy firms, including ExxonMobil and Chevron, appealed that decision, asking the U.S. Supreme Court to stop the case from moving forward.
On Monday, the Supreme Court asked the Biden administration’s solicitor general for its opinion on the appeals.
That may sound like a technicality. But to legal experts, it’s a sign that the case has the attention of the justices. The Supreme Court reviews many appeals each year, but only seeks input from the solicitor general in cases it is actively considering taking up.
Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University in New York, said the development “means they are interested in the case.”
Whether the cases are heard in federal or state court matters. The cities and states bringing these cases believe they are more likely to win in state court, where local juries may be more sympathetic to the argument that oil companies have harmed nearby communities.
The oil companies and their lawyers believe they will fare better in federal court, which is generally a more favorable venue for big corporations.
Ted Boutrous, counsel for Chevron, said in a statement that the issues at stake in the Hawaii case were beyond the limits of state control and that “these meritless state and local lawsuits violate the federal constitution and interfere with federal energy policy.”
Thus far, none of the oil companies’ other attempts to change venues have been successful. But in recent weeks, conservative groups have been running ads and writing opinion pieces urging the Supreme Court to dismiss the Honolulu case. Some of that pressure campaign was funded by groups linked to Leonard Leo, the conservative activist who has worked for decades to shift the court right, according to reports in The Guardian, E&E News and Rolling Stone.
“Big Oil companies are fighting desperately to avoid trial in lawsuits like Honolulu’s,” said Richard Wiles, president of the Center for Climate Integrity, a nonprofit group working to promote lawsuits against fossil fuel companies.
The Supreme Court’s 6-3 conservative majority, which has largely been deferential to business interests, might be expected to be sympathetic to the oil companies. Yet already Justice Samuel Alito has recused himself from this case, likely because he owns stock in ConocoPhillips, one of the defendants.
Justice Alito’s recusal matters. “That could deprive the oil companies of one of the four votes they need for the Court to take the case, and one of the five votes they need to win,” said Gerrard.
(Justice Alito is under scrutiny for the raising of political flags associated with the Jan. 6, 2021, attack on the Capitol, but has declined to recuse himself from a case stemming from the violence that day. Gerrard noted that it was “interesting to see his varying views on what requires recusal.”)
What happens next could impact climate litigation in a big way. Should the Supreme Court take up the Honolulu case, it may well articulate its views on the proper ways in which states and cities can, or can’t, seek remedies from fossil fuel companies.
How the court comes down on this central issue would likely have an impact on the dozens of other similar cases brought by California, Massachusetts and other cities and states around the country.
It would also likely inform the litigation that is inevitably going to be brought against the so-called “Climate Superfund” law recently adopted by Vermont, Gerrard said.
And that could determine whether or not big oil companies are on the hook for billions of dollars in damages.
Tracking the most endangered marine mammal on Earth
During a few weeks or so each year, an international team of scientists spends long days at sea searching for the most endangered marine mammal on Earth: the vaquita porpoise. The species is teetering on the edge of extinction, with recent surveys estimating around 10 individuals in the area where they’ve been considered most likely to live.
Results from this year’s survey, issued on Tuesday, were disappointing: Researchers estimate they saw six to eight individual vaquitas there, the lowest result ever recorded.
Still, the scientific team and the Mexican government cautioned that the population had not necessarily declined, emphasizing that more vaquitas may exist outside the search area. Since at least 2019, the visual surveys have focused on one zone where acoustic monitoring and other research has suggested the remaining animals congregate. — Catrin Einhorn
Read more about researchers’ tracking of the vaquita.
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