Oil Industry Opposes Biden Administration’s Climate Nuisance Suit Claims

Jan 02, 2025

The oil industry is opposing arguments from the Biden administration’s solicitor general (SG) urging the Supreme Court to reject the sector’s call to overrule a Hawaii court ruling that allows Honolulu’s climate nuisance and fraud case to proceed, arguing that the SG “attempts to throw a wrench in the works, raising a series of purported obstacles to review.”

The industry’s Dec. 24 filing in Sunoco LP, et al. v. City and County of Honolulu, et al. comes as the justices on Dec. 24 also scheduled the case for their Jan. 10 conference.

The justices have been expected to decide whether to grant industry’s petition for a writ of certiorari after hearing the SG’s input on the long-running and wide-ranging litigation effort where states, cities and counties around the country are seeking damages from oil companies both for their alleged deception campaigns as well as to repair climate change-driven damages.

The closed-door conference is 10 days before President-elect Donald Trump is slated to return to the White House for a second term. During his first term, his administration opposed these cases and agreed with industry claims that they belonged in federal court and were preempted by the Clean Air Act.

The Supreme Court earlier rejected the push to “remove” the cases to federal court, but oil majors are again asking the high court to step in and block the cases.

It is unclear if the Trump administration would seek to reverse the Biden SG’s position on the issue should the court grant cert after its Jan. 10 conference.

However, Jeffrey B. Simon, an attorney who is a partner in the law firm of Simon Greenstone Panatier, and also representing Multnomah County, OR, in its litigation against oil majors, tells Inside EPA that there is a direct conflict between claims that such suits are preempted by EPA’s air law authority at the same time a Trump EPA is expected to “go out of its way to regulate less.”

He adds: “I would also argue that the best use of the civil justice system and mass tort litigation is to improve public health and environmental conditions where government regulation has failed” and as “the incoming Trump administration appears to want to abdicate that space.”

Oil Industry Response

However, the oil industry’s response to the Biden SG’s filing argues: “Despite the government’s best efforts, the case for this Court’s review is compelling. There are now dozens of similar cases pending in state courts nationwide. The arguments on both sides of the question presented have been fully ventilated in the lower courts, and there is a clear conflict on that question. The question is of substantial importance to one of the country’s most critical industries, and it raises profound questions of constitutional structure.”

Further, more years of “complex and costly litigation may ensue before another case presenting this question works its way through a state appellate system to this Court — particularly if (as the government erroneously suggests) the case must first proceed to a final judgment. The Court should decide now whether state-law climate claims may go forward, instead of allowing uncertainty about the viability of these claims to linger. The petition for a writ of certiorari should be granted.”

The industry is responding to SG Elizabeth Prelogar’s Dec. 10 brief urging the Supreme Court to reject industry’s petition and instead allow Honolulu’s case alleging five claims under state common law to proceed in state court.

All five claims rely on the same theory of liability, “that petitioners have known for decades that greenhouse-gas emissions from the use of their fossil-fuel products would contribute to climate change,” and that the companies “engaged in deceptive marketing by concealing and misrepresenting the dangers of using their fossil-fuel products.”

The SG filing added that the court lacks jurisdiction to review an interlocutory — not final — decision that affirmed a denial of a motion to dismiss.

Prior Decisions

The Supreme Court in April 2023 declined to review a series of appeals court jurisdictional decisions that routed these cases to state court. Specifically, the court rejected cert petitions in five nuisance cases brought by Boulder, CO; Baltimore; San Mateo County, CA; Honolulu and Rhode Island.

The Baltimore case was dismissed in July after Judge Videtta Brown of the Circuit Court for Baltimore City held that the case is “entirely” about addressing global warming rather than countering oil companies’ concealment of fossil fuel dangers.

In a statement on the oil industry’s response brief in the instant case, Theodore Boutrous, representing Chevron, says, “the Hawaii Supreme Court’s decision flatly contradicts U.S. Supreme Court precedent and other federal circuit court decisions. In dismissing a nearly identical lawsuit, the [2nd] Circuit held, ‘such a sprawling case is simply beyond the limits of state law.’ The Supreme Court should grant review now to prevent pointless harm to our nation’s energy security.”

Dozens of oil industry allies — including 20 states, former Trump Attorney General Bill Barr, industry trade associations, retired high-ranking military officials and conservative think tanks — backed the petition in amicus filings last spring. — Dawn Reeves (dreeves@iwpnews.com)

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