Supreme Court Gives Biden DOJ a Chance to Prove Its Commitment to Climate Justice

The U.S. Supreme Court on Monday invited the Biden Justice Department to offer its position on a hugely consequential case in which oil giants are attempting to move climate liability lawsuits from state to federal courts, where they believe they would be more likely to prevail against efforts to make them pay for damaging the environment.

In Suncor Energy Inc. v. Board of County Commissioners of Boulder County, Suncor and ExxonMobil are urging the conservative-dominated Supreme Court to intervene after the 10th Circuit Court of Appeals rejected the fossil fuel companies' argument that such climate liability cases belong in federal court.

"It's time for Attorney General Garland and the Justice Department to get off the sidelines."

As it mulls whether to take up the fossil fuel corporations' attempt to overturn the 10th Circuit decision, the Supreme Court released an order Monday asking the Justice Department to offer its view of the case.

In a statement, the Center for Climate Integrity argued that the high court's invite offers the DOJ a chance to openly break with the Trump Justice Department, which took the side of Big Oil and helped the industry fight climate liability cases in several cities and states.

The Justice Department's silence on the issue has allowed fossil fuel companies to continue citing the Trump DOJ's arguments in support of their attempts to quash the liability suits.

"After years of ignoring pleas from state, federal, and local officials for the Justice Department to heed President Biden's campaign pledge to support climate lawsuits against polluters, the administration will finally have to take a stand on these cases," said Richard Wiles, CCI's president. "It's time for Attorney General Garland and the Justice Department to get off the sidelines, make good on President Biden's pledges, and support communities in their efforts to hold polluters accountable."

The Supreme Court's request for DOJ input comes as the campaign to hold major polluters financially liable for climate destruction continue to gain steam nationwide.

As the Revolving Door Project's Hannah Story Brown wrote for Washington Monthly in August, "It started with Boulder in early February," a reference to the 10th Circuit ruling that Colorado municipalities' climate liability lawsuit against oil giants should proceed in state court.

"Then came Baltimore and San Mateo in April. Now Honolulu and Maui are the latest municipalities to overcome a crucial legal hurdle in their fight to make fossil fuel companies pay for their role in climate change," Brown continued. "The stakes are massive: requiring fossil fuel companies to foot the bill for climate change-related damages to U.S. cities and states could easily run into the tens of billions."

"This fight over venue is essential, because if the plaintiffs' claims were governed by federal law, they could swiftly be dismissed."

Since early 2021, state attorneys general, state-level lawmakers, and some U.S. senators have been pushing Garland to formally reverse the Trump Justice Department's pro-industry stance and support climate liability lawsuits against oil giants--as Biden pledged to do on the campaign trail.

"We respectfully urge you to review and reverse the positions previously taken by DOJ in the various climate deception lawsuits during the prior administration. The urgency and importance of DOJ reversing these positions cannot be overstated," the attorneys general of Minnesota, Massachusetts, Delaware, Rhode Island, Connecticut, and Washington, D.C. wrote in a letter to Garland in April of last year.

But Brown noted that despite such entreaties, "Garland has taken no action," frustrating plaintiffs who have been battling fossil fuel companies in court for years.

"This fight over venue is essential, because if the plaintiffs' claims were governed by federal law, they could swiftly be dismissed," Brown noted. "That resulted from a 2011 Supreme Court decision, AEP v. Connecticut, which barred federal common law claims about climate change liability. The court ruled that they were 'displaced' by the Clean Air Act. But the decision left claims under state common law as an option. After AEP, cities and states turned to state courts to seek damages from the big energy companies."

Wiles of CCI, which is providing support for climate liability lawsuits across the U.S., said Monday that "doubling down on the department's Trump-era support of Big Oil would constitute a betrayal of A.G. Garland's pledges to support environmental justice and contravene a string of unanimous rulings from five separate circuit courts, which agreed that these cases should proceed in state court."