Under Pressure From Big Oil, Supreme Court Requests Biden Position on Climate Suit

The U.S. Supreme Court on Monday asked the Biden administration for its position on a climate lawsuit against Big Oil following a pressure campaign the industry has mounted to have the court dismiss it.

The case, brought by the city and county of Honolulu, is one of dozens of state and local lawsuits seeking to hold Big Oil to account for the climate impact that its products have had and for the deception and disinformation used to sell them. The industry could be found liable for many billions of dollars if such cases reach jury trials, and so a group of companies has filed a petition, supported by legal briefs and a public advertising campaign, to the Supreme Court to hear their case for dismissal.

The Center for Climate Integrity (CCI) wrote Monday that the solicitor general, the administration lawyer who will handle the request, should advise the Supreme Court that states and municipalities can file these cases in state courts—to ignore Big Oil's petition, effectively.

"Big Oil companies are fighting desperately to avoid trial in lawsuits like Honolulu's, which would expose the evidence of the fossil fuel industry's climate lies for the entire world to see," Richard Wiles, the group's president, said in a statement. "Communities everywhere are paying dearly for the massive damages caused by Big Oil's decadeslong climate deception. The people of Honolulu and other communities across the country deserve their day in court to hold these companies accountable."

In November, the Hawaii Supreme Court rejected a previous Big Oil effort to stop the case, which set the table for a potentially momentous jury trial—none of the climate lawsuits have yet reached that stage, and City and County of Honolulu v. Sunoco et al. could be the first. The industry had tried to argue that the lawsuit sought to regulate interstate and international carbon emissions, which states don't have the right to do, and thus the case couldn't be brought in state court. The court ruled the case wasn't about the regulation of carbon emissions.

Big Oil then filed its Supreme Court petition, backed by a major campaign: right-wing groups have not only filed amicus briefs with the court but also mounted an unusually public campaign calling for the court to dismiss Honolulu and other such cases.

"This looks to be the most aggressive campaign yet to influence the court on behalf of Big Oil," Kert Davies, CCI's director of special investigations, toldE&E News. "The fossil fuel industry and its allies are clearly threatened by these legal efforts to hold them accountable, and they're going to unprecedented lengths to send out distress signals in the hope they'll be rescued from standing trial."

"Far-right fossil fuel allies have launched a stunning and unprecedented campaign pressuring the Supreme Court to shield fossil fuel companies from litigation that could cost them billions of dollars," according toThe Guardian, which tied the campaign to Leonard Leo, the so-called architect of the Supreme Court, thanks to his influence in conservative legal circles and over Donald Trump, who appointed three of the current justices as president.

An ad produced by the Alliance for Consumers, a nonprofit that has ties to Leo, posits the Supreme Court as the "solution" to the overreach of "left-wing officials" who are pushing a political agenda through the courts by misusing public nuisance lawsuits.

Conservatives have also published opinion pieces in favor of the Big Oil petition in outlets such as Bloomberg Law, The Hill, National Review, and The Wall Street Journal, which titled its piece "Honolulu Tries to Mug Energy Companies."

"I have never, ever seen this kind of overt political campaign to influence the court like this," Patrick Parenteau, a professor at Vermont Law School, toldThe Guardian.

The fact that the Supreme Court asked the solicitor general for the administration's position indicates that some justices are interested in the case—the court throws out thousands of petitions a year without asking for such input.

CCI, like the Hawaii Supreme Court, finds no merit in the industry's legal argument that Honolulu is an attempt to regulate emissions.

"Lawsuits like Honolulu's are not seeking to solve climate change or regulate emissions—these plaintiffs simply want Big Oil to stop lying and pay their fair share of the damages they knowingly caused," Alyssa Johl, the group's vice president of legal and general counsel. "The solicitor general should make clear that federal laws don't preempt the ability of communities to hold companies accountable for their deceptive claims under state law."

In a similar case last year, Biden's solicitor general sided with Colorado municipalities that had filed suit and rejected the arguments in a Big Oil petition, urging the Supreme Court not to take up Big Oil's petition. The court followed the administration's advice on that and a few related cases. Roughly 40 states and municipalities have filed such suits since 2017.

There remains the possibility that the federal government itself could bring a case against Big Oil for propagating disinformation and blocking a green transition. Last month, Sen. Sheldon Whitehouse (D-R.I.) and Rep. Jamie Raskin (D-Md.) called on the U.S. Department of Justice to investigate the industry for those alleged crimes, following a three-year probe that their congressional committees had conducted.

Monday's Supreme Court request of the solicitor general notes that Justice Samuel Alito didn't take part in the considerations of the case—"probably because he owned stock in ConocoPhillips, a defendant in the case," according to The Guardian.