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elizabeth prelogar
In Supreme Court Briefs, Biden DOJ Sides With Communities Suing Big Oil
"The Justice Department has affirmed again that communities deserve their day in court to put Big Oil companies on trial for their climate lies and the resulting harms."
Dec 11, 2024
Campaigners and experts on Wednesday welcomed the Biden administration's new briefs urging the U.S. Supreme Court not to intervene in state and local lawsuits that aim to hold fossil fuel giants accountable for lying to the public about their contributions to the climate emergency.
The Tuesday filings in Sunoco v. the City and County of Honolulu and Alabama v. California align with U.S. Solicitor General Elizabeth Prelogar's amicus brief last year, which stemmed from Colorado communities suing Big Oil. Following that filing, the justices declined to hear five appeals from fossil fuel companies trying to shift climate liability cases from state to federal court.
The U.S. Supreme Court—which has a right-wing supermajority—asked Prelogar to weigh in again this past June and October. Her new filings have climate advocates hopeful that the justices will follow their previous path and let the cases against major polluters advance in state court.
"The Justice Department has affirmed again that communities deserve their day in court to put Big Oil companies on trial for their climate lies and the resulting harms," said Richard Wiles, president of the Center for Climate Integrity (CCI), in a statement. "Big Oil companies are desperate to avoid facing the evidence of their deception in a courtroom, but wanting to escape the consequences for your actions is not the same thing as having the law on your side."
"As the solicitor general makes clear, there is no legal basis for the Supreme Court to intervene in these cases."
In Honolulu's case—intended to make companies including BP, Chevron, ExxonMobil, and Shell pay for local climate damages—the Hawaii Supreme Court rejected the fossil fuel industry's argument that "state law claims alleging the deceptive marketing of fossil fuel products were either governed by the federal common law of transboundary air pollution or preempted by the Clean Air Act."
Prelogar made the case that the country's highest tribunal "does not have jurisdiction to review the Hawaii Supreme Court's interlocutory decision" that allowed Honolulu's suit to proceed, "and even if it did, further review at this time would be unwarranted."
For the other case—which involves 19 state attorneys general trying to stop climate deception suits in California, Connecticut, Minnesota, New Jersey, and Rhode Island—Prelogar wrote that "there is no merit to the contention that the federal common law of transboundary air pollution governs (and therefore precludes) the defendant states' claims."
The solicitor general also argued that the attorneys general working on behalf of Big Oil lack standing; "the only interests directly at stake are the interests of private energy companies," not the citizens of each state; and "the very suits that the complaint seeks to enjoin are better forums for resolving the issues raised."
Alyssa Johl, vice president of legal and general counsel for CCI, said that "as the solicitor general makes clear, there is no legal basis for the Supreme Court to intervene in these cases. 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. The justices should reject these meritless requests and allow communities to have their day in court to hold Big Oil accountable."
Experts at the Union of Concerned Scientists (UCS) agreed. Delta Merner, lead scientist for the group's Science Hub for Climate Litigation, said the new briefs "represent an important step in the pursuit of climate accountability" and "reaffirm that communities have the right to hold fossil fuel companies accountable for decades of misleading the public about the harms associated with their products."
"Research has shown how fossil fuel companies knowingly concealed the dangers of their products while misleading the public—a pattern of misconduct that contributed directly to today's climate crisis," she noted. "These cases seek to give communities the chance to present this evidence in court, shining a light on the broader impacts of corporate disinformation campaigns."
"We applaud the Biden administration's continued support for these lawsuits and urge the incoming Trump administration to continue following science and clear legal arguments."
Kathy Mulvey, director of the climate accountability campaign at UCS, stressed that "communities like Honolulu are bearing the financial burden of addressing climate damages, using public dollars to remediate harms caused by decades of deception by fossil fuel companies."
"A core principle of accountability is timely access to justice through the courts. Honolulu and other communities have already waited years to present their evidence and argue their claims," she added. "We applaud the Biden administration's continued support for these lawsuits and urge the incoming Trump administration to continue following science and clear legal arguments."
Honolulu's suit is just one of dozens that state and local governments have filed against the fossil fuel industry—and Prelogar's brief last year notably represented a departure from the first Trump administration's support for Big Oil. Her new briefs come as the nation prepares for President-elect Donald Trump to return to the White House next month, with a Republican-controlled Congress.
Shortly after the GOP electoral victories last month, Emily Sanders a senior reporter for the CCI project ExxonKnews, spoke with multiple legal experts who framed the courts as key to Big Oil accountability with Trump and Republican lawmakers in power.
"It's not a stretch to say the message coming from the federal executive branch writ large and large numbers of Congress is going to be climate denial and misrepresentations," said Pat Parenteau, an environmental law professor and senior fellow at Vermont Law School. "So these cases and these jury verdicts are going to be even more important to correct the record to the extent you can."
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US Supreme Court Seeks Biden Admin Opinion on Climate Suits Against Big Oil
Republican attorneys general are engaged in what one critic called "an obvious attempt to shield fossil fuel companies from facing accountability for their climate lies."
Oct 08, 2024
In yet another recent display of what's at stake in this year's U.S. presidential race, the U.S. Supreme Court on Monday requested that the Biden administration weigh in on a case intended to thwart climate lawsuits against fossil fuel companies.
The justices invited U.S. Solicitor General Elizabeth Prelogar—an appointee of Democratic President Joe Biden who represents the federal government in court—to file a brief "expressing the views of the United States" regarding Alabama v. California.
In May, Alabama Attorney General Steve Marshall and 18 of his Republican colleagues launched their bid to block lawsuits that several Democrat-led states including California have brought against energy giants for deceiving the public while fueling the global climate emergency. Multiple U.S. municipalities have filed similar suits against Big Oil.
Although justices have rejected the oil and gas industry's efforts to shift those suits from state to federal court, six of them are right-wingers with a record of anti-environment rulings. A spokesperson for Marshall toldReuters that the new request of Prelogar is "an encouraging sign that the justices are taking seriously the complaint of 19 states."
"Communities deserve their day in court to hold Big Oil accountable."
Meanwhile, Richard Wiles, president of the Center for Climate Integrity (CCI), took aim at the Alabama-led case, saying in a statement that "this meritless, politically driven request is an obvious attempt to shield fossil fuel companies from facing accountability for their climate lies and the monumental damage they're causing."
"It should be a no-brainer for the solicitor general to oppose this petition and for the Supreme Court to reject it," he added. "Communities deserve their day in court to hold Big Oil accountable."
Wiles responded similarly in June, when the Supreme Court asked Prelogar to weigh in on a case brought by the City and County of Honolulu.
Alyssa Johl, CCI's vice president of legal and general counsel, said at the time that "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. The solicitor general should make clear that federal laws do not preempt the ability of communities to hold companies accountable for their deceptive claims under state law."
Reuters pointed out Monday that Prelogar has not yet filed a brief in that case, but has some history with these suits:
The Democratic-led states have noted that the Supreme Court has previously rejected bids by oil companies to move several such lawsuits to federal court, after numerous U.S. appeals courts said the claims are not preempted by federal law.
Prelogar had weighed in on that issue as well and had successfully urged the justices to reject the oil companies' appeals.
Although it's not yet clear where the Biden administration will come down on either of these cases—and the U.S. Department of Justice has infamously fought a climate suit that youth plaintiffs filed against the federal government—the high court's move comes less than a month away from a presidential election in which the fossil fuel-driven global emergency is a divisive issue.
The Republican nominee, former Republican President Donald Trump, has pledged to roll back the Biden administration's insufficient yet historic progress on climate policy if the fossil fuel industry pours $1 billion into his campaign.
His Democratic opponent, Vice President Kamala Harris, is facing some criticism for watering down her previous climate policies but also had broad support from green groups, including some that had declined to endorse Biden before he dropped out and endorsed her in July.
Some climate campaigners and survivors of extreme weather events hope that Harris' election in November will lead to the Department of Justice launching a criminal case against fossil fuel companies, as Sen. Sheldon Whitehouse (D-R.I.) and Rep. Jamie Raskin (D-Md.) called for in May after conducting a three-year congressional investigation.
Harris is "the perfect person to prosecute the case against Big Oil," Fossil Free Media director Jamie Henn wrote in a Common Dreams opinion piece this summer. As California's attorney general, she "went after ConocoPhillips (the company behind the Willow Project in Alaska) for air quality violations at their gas stations and prosecuted a pipeline company for a 2015 spill in Santa Barbara. Before that, as San Francisco district attorney, she set up the city's first environmental justice division."
While many names have been floated as Harris' potential pick for attorney general, some climate advocates have recently urged her to pick Raskin to lead the Department of Justice. As progressive organizer Aaron Regunberg wrote for The New Republic in August, "Who better to ensure the DOJ stops bowing to fossil fuel industry pressure than the head of the House Oversight Committee's push to hold Big Oil accountable?"
Regardless of which cases are filed and how far they go, concerns remain about conflicts of interests in the courts, particularly at the highest level of the federal judiciary.
Justice Samuel Alito "has recused himself from Honolulu and other climate accountability cases—likely because of his investments in oil companies," CCI highlighted on social media Monday. "But today he did not recuse himself from the request from 19 Republican AGs to block lawsuits against Big Oil."
"Justice Amy Coney Barrett has also faced calls to recuse herself from cases against Big Oil because her father was a top attorney for Shell for 29 years," the group added. "But she has not."
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Supreme Court Rules 5-4 Against Texas in Razor Wire Border Battle
"The fact that four votes went in Texas' favor is a worrying sign," said one advocate.
Jan 22, 2024
Immigrant rights advocates and legal experts on Monday applauded as the U.S. Supreme Court ruled that Texas officials cannot impede federal border agents from cutting down razor wire that Republican Gov. Greg Abbott installed near the Rio Grande to stop migrants and asylum-seekers from crossing the U.S.-Mexico border—but expressed shock that four justices opposed the decision.
The high court voted 5-4 in favor of the Biden administration, which had previously been ordered by a federal appeals court last month to stop removing razor wire.
Right-wing Justices Brett Kavanaugh, Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented, while Chief Justice John Roberts and Justice Amy Coney Barrett joined the court's three liberals in voting to allow border agents to cut down the wire.
Texas argued last month that under the Biden administration's orders, border agents had damaged state property and illegally trespassed when they cut through the concertina wire in order to reach migrants who had crossed onto U.S. soil and take them into custody for processing.
The U.S. Justice Department filed an emergency request asking the Supreme Court to reverse the federal appeals court's ruling.
In the Biden administration's filing, officials noted that three migrants—a woman and two children—drowned just over a week ago while trying to cross the Rio Grande.
The drownings, wrote U.S. Solicitor General Elizabeth Prelogar, "underscore that Texas is firm in its continued efforts to exercise complete control of the border and land... and to block Border Patrol’s access to the border even in emergency circumstances."
"It is impossible to say what might have happened if Border Patrol had had its former access to the area—including through its surveillance trucks that assisted in monitoring the area," wrote Prelogar. "At the very least, however, Border Patrol would have had the opportunity to take any available steps to fulfill its responsibilities and assist its counterparts in the Mexican government with undertaking the rescue mission. Texas made that impossible."
The administration said the appeals court's ruling turned the U.S. Constitution's supremacy clause "on its head." The clause states that federal laws take precedence over statutes put in place by state governments.
"If that injunction is left in place," Prelogar said, "it will impede Border Patrol agents from carrying out their responsibilities to enforce the immigration laws and guard against the risk of injury and death, matters for which the federal government, not Texas, is held politically accountable."
Journalist Peter Sterne was among those who expressed concern over the four conservative justices' apparent disagreement with the supremacy clause.
"Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents," said University of Texas School of Law professor and CNN Supreme Court analyst Steve Vladeck. "That four justices would still have left the lower court injunction in place will be taken, rightly or wrongly, as a sign that some of those long-standing principles of constitutional federalism might be in a degree of flux."
Aaron Reichlin-Melnick, policy director of the American Immigration Council, said that considering well-established constitutional law, it was "not a surprise that the Supreme Court ruled in the Biden administration's favor here.
"That said," he added, "the fact that four votes went in Texas' favor is a worrying sign."
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