Welcome

Climate Litigants See Cases Buoyed by Biden Pledge of Support

Nov. 12, 2020, 11:01 AM

City and state officials suing Big Oil over climate change are eyeing President-elect Joe Biden’s victory as an advantage for their litigation.

The former vice president has pledged to “strategically support” cases against companies accused of misleading the public about fossil fuels’ leading role in global temperature increases. The commitment is a minor piece of Biden’s plans for aggressive action on climate change—but one that has drawn close interest from some advocates.

To lawyers spearheading more than a dozen lawsuits against Exxon Mobil Corp., Chevron Corp., and others, it’s a welcome change from the Trump administration’s support for the industry in procedural fights that have played out so far.

“We look forward to an administration that is willing to stand up to polluters rather than shield them from liability, and that will support efforts here in Rhode Island and all around the country to address climate change,” said Kristy dosReis, a spokesperson for the state attorney general’s office, which sued 21 major fossil fuel companies in 2018.

Baltimore acting city solicitor Dana P. Moore, who’s waging a climate battle that has reached the U.S. Supreme Court, likewise said her team welcomes the incoming Democratic administration’s commitment.

‘Low-Hanging Fruit’

Biden’s pledge to aid climate litigation was tucked into a clean energy and environmental justice plan his campaign released earlier this year. The document is light on specifics, and a campaign official said Tuesday he didn’t have any further details to offer for now.

Legal scholars say Biden’s vow to “strategically support” climate litigation most likely means the next administration’s Justice Department will file amicus briefs on the plaintiffs’ side, lending reinforcement to their arguments.

Such friend-of-the-court filings are “low-hanging fruit” for the Biden administration’s climate plans, said Ama R. Francis, a climate law fellow at Columbia University’s Sabin Center for Climate Change Law.

“This is a good, easy way to demonstrate and act on Biden’s commitment to climate, and to hopefully make a difference in how these cases come out,” she said. The Justice Department’s involvement isn’t likely to make or break the outcome of a case but sends a powerful signal of federal support, Francis added.

Others were more skeptical, questioning whether the Biden administration could influence climate litigation at all.

“The only real way to move the needle would be to change the law somehow to create that liability,” Bloomberg Intelligence analyst Brandon Barnes said, “and that’s Congress.”

‘Greater Credibility’

But amicus briefs carry special weight and add “greater credibility to claims” when they come from the U.S. government, George Mason University law professor Donald Kochan said, adding that they “undoubtedly will help” plaintiffs in the climate litigation.

That’s especially true in cases that feature disputes over federal preemption and state-versus-federal court venue, said Niskanen Center attorney David Bookbinder, who represents Colorado local governments in pending climate litigation.

Those federal-state debates have dominated early proceedings in climate lawsuits, with litigation pingponging between state and federal courts across the country. Industry lawyers have argued that state-law claims from Rhode Island, Baltimore, and other localities are actually federal issues that belong in federal court. The Supreme Court is reviewing a related, technical question next year.

Under Trump, the Justice Department has come to the industry’s side in some cases, telling courts the federal Clean Air Act displaces the local governments’ claims against oil companies.

‘Follow Through’

Advocates are already pressuring the Biden team to make good on his campaign promise to support climate litigation—and take further action to ensure accountability.

“Once he enters office, President-elect Biden must follow through on that pledge and support legal actions, investigations, and other efforts to hold oil and gas companies, and their executives, accountable for causing and lying about the climate crisis” Richard Wiles, executive director of the Center for Climate Integrity, said in a statement Saturday after networks called the presidential race.

The Biden administration should also “oppose any and all legislative attempts to cut off access to the courts and give the fossil fuel industry immunity from liability for the harm they have caused,” said Maui County Mayor Michael Victorino, whose government has also sued the industry over climate change. Conservative legal advocates have repeatedly called on Congress to set new restrictions on tort lawsuits, or offer liability shields for the oil and gas industry.

Some have questioned whether Biden’s commitment to backing climate plaintiffs will translate to action, arguing that climate liability isn’t a strictly partisan issue.

“We expect his administration to take a similar view of climate litigation as the Obama administration, which filed briefs explaining that this kind of tort litigation invades the ability of Congress and EPA to enact broad, meaningful policies for the country,” said Phil Goldberg, special counsel for the industry-aligned Manufacturers’ Accountability Project.

Goldberg was referring to American Electric Power v. Connecticut, a 2011 Supreme Court case in which the federal government successfully argued that the Clean Air Act trumped states’ federal common law claims related to greenhouse gas emissions.

But that case addressed only federal common law questions; the cities and states currently waging climate litigation have carefully crafted their claims under state common law, said Selendy & Gay PLLC attorney Lena Konanova. She said she’s confident Biden and Vice President-elect Kamala Harris will deliver on their climate litigation pledge, given their campaign’s focus on ensuring environmental justice and holding polluters accountable.

Industry Wants Collaboration

Amid talk of losing the federal government as an ally in climate litigation, industry defendants have trained their message on hopes for collaboration with the incoming administration.

Exxon pledged to “work with the administration and members of Congress” to address climate change, as well as economic recovery and affordable energy development.

Chevron, meanwhile, reiterated the company’s view that climate lawsuits are “legally baseless.”

“Instead of litigation, collaboration between energy companies and other stakeholders in the public and private sectors would significantly increase our ability to address climate change in a meaningful way,” spokesman Sean Comey said in an email. “We look forward to engaging with President-Elect Biden and his team on these important issues.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.