Annapolis, MD, USA 07.12.2021 – Supreme Court Building of Maryland
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A long-running climate lawfare campaign targeting U.S. oil and gas companies faces a key inflection point in Maryland next week. There, the state’s Supreme Court will hear arguments on Monday, October 6 in an appeal asking to restart three such cases which were thrown out by lower courts.
A Series Of Lower Court Dismissals Hamper The Lawfare Effort
The plaintiffs in those lawsuits – the cities of Baltimore and Annapolis, along with Anne Arundel County – had attempted to recover money damages with claims that would apply state and local tort laws to regulate injuries allegedly caused by global emissions from the use of oil and natural gas. It is a premise which has been rejected time after time by courts around the country, including the Maryland courts which hosted initial arguments in these cases.
Judge Videtta A. Brown dismissed the Baltimore case last July, ruling that the claim lawsuit “goes beyond the limits of Maryland state law.” She added that the city’s arugument that the defendants in the case – BP and other oil companies – had misled the public with their marketing, and by failing to inform customers of the climate impacts caused by the burning of oil and gas. In using this argument, the city and its lawyers hoped to prove damages under Maryland’s consumer protection laws. But the Judge ruled such claims amount to “simply a way to get in the back door what they cannot get in the front door,” and that the essence of the suit “is entirely about addressing the injuries of global climate change and seeking damages for such alleged injuries.”
In his decision dismissing the case brought by the city of Annapolis and Anne Arundel County, Judge Steven I. Platt specifically noted that Judge Brown’s reasoning had influenced his own thought process. Their rulings fall in line with decisions to dismiss cases in other jurisdictions which were part of this years-long lawfare campaign for which local governments have been recruited by plaintiff firms to serve as the face and share in any ultimate proceeds. After years of trying, this scheme has to this point proven a fruitless endeavor.
“It is important that the Maryland Supreme Court get these cases right,” Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, said in an email. “Maryland’s trial courts recognized that the climate matters raised here are federal public questions for Congress and the EPA, not liability issues for state courts. If these cases—along with similar ones around the country—were allowed to proceed, it will hurt consumers who depend on affordable energy every day.”
DOJ, State AGs Intervene With Amicus Briefs
Coming as it does on the heels of a key decision dismissing a case in Puerto Rico, the Maryland appeal has attracted an array of amicus briefs filed by interested parties. Those include one filed by the U.S. Department of Justice and another sent in on behalf of a coalition of 26 Republican state attorneys general.
In its’ brief, the DOJ argues that the lawsuits target worldwide activities and implicate substantial federal interests, making them unsuitable for resolution under Maryland tort law. Those federal interests include the fact that the federal government has always held preeminent authority to regulate air quality and emissions under the terms of the Clean Air Act, an argument which has been consistently and repeatedly upheld by the federal courts. A win by the plaintiffs in any of these cases would open the door to state and even local regulation of emissions, forcing energy producer and the users of oil and gas to comply with what would inevitably become a vast, Byzantine web of conflicting requirements.
The coalition of attorneys general A coalition of 24 state attorneys general agree, warning that the lawsuits rest on an expansive and unprecedented theory of nuisance liability. They add that even perfect compliance with Maryland’s consumer protection laws would not prevent climate impacts such as storms or heatwaves, underscoring an inherent mismatch between the claims and the remedies sought.
The Big Question: Who Benefits From This Climate Lawfare?
For those on the plaintiff side who subscribe to the philosophy that the process is the punishment delivered by this sort of lawfare campaign, there is no doubt it has been successful in promoting the climate activist agenda despite the lack of favorable rulings. The attention brought by these cases advances fundraising efforts for activist groups and supports their reason for existing. Companies named as defendants in at least some of the cases include the biggest names in the business: BP, Chevron, Shell, ExxonMobil, and many others. All have been forced to spend millions of dollars and thousands of hours of staff time to mount defenses to claims which have been summarily rejected by an array of courts across the country.
So, the costs are clear and seem destined to continue unless and until the U.S. Supreme Court decides to weigh in to try to put a final halt to the lawfare campaign. The consistency of the rulings would seem to indicate such a final outcome is near-inevitable. But when it finally comes, the question will remain: Who really benefitted from it all? Certainly, not the public.