Lawfare Campaign Targeting Big Oil Comes To Charleston

Another key hearing related to a foundering anti-oil and gas lawfare effort is scheduled to take place in Charleston, South Carolina starting on Thursday, May 29. The case, brought by the City of Charleston, represented by the Sher Edling firm headquartered in San Francisco, is the latest attempt by a state or local government entity to hold oil companies liable for ill-defined impacts related to climate change.

Thus far, this lawfare campaign involving Sher Edling and other law firms recruiting government entities to essentially serve as sponsors of the lawsuit filings has seen little success, as most cases have been dismissed in the courts. Indeed, in 10 global emissions tort cases to reach the merits in which Chevron has been named as a defendant, 9 have been tossed, with only the case brought by the city and county of Honolulu proceeding on the merits in state court under Hawaii state law. Three additional such cases were voluntarily dismissed by the named plaintiffs when it became apparent they would not prevail.

Lawfare Comes to Charleston

The City of Charleston case involves Chevron, along with most other “big oil” companies doing business in the United States, a true scattergun approach. The city claims it has somehow been damaged to the tune of billions of dollars on allegations that the companies have sought to hide the climate impacts from emissions resulting from the refining and usage of the products they produce.

As they have done in every other case brought and dismissed by various states and cities which have been recruited for this lawfare campaign, lawyers for the defendants argue that this case must also be dismissed because it is a clear violation of the U.S. Constitution and provisions in the federal Clean Air Act barring lawsuits that seek relief for injuries allegedly caused by out-of-state and international greenhouse gas emissions.

The federal government has long held primacy over the regulation of air emissions as a matter of both legal principle and simple common sense. If state and even local governments were allowed to enforce regulatory schemes of their own, it would become near impossible for any company whose products and enterprise results in such emissions to conduct business in the United States.

While the Charleston case was making its way through the courts, President Donald Trump signed Executive Order 14260, which seeks to restrict the ability of states and local governments to participate in this sort of lawfare campaign enhances the urgency for the judge to rule in the case. In response, Circuit Judge Roger M. Young, Sr. requested both sides to present arguments in advance of Thursday’s hearing. The two sides responded with a joint filing filed in early May.

Lawyers for the City of Charleston urged Judge Young to essentially ignore the presidential order, saying that the constitutionality of their case is up to the courts to decide. “The city submits that any deference to this executive order, especially given its forward-looking intent, threatens the core import of judicial review,” they write. “Neither this executive order nor the executive branch possess constitutional authority to dictate to this court or the judicial system how to rule in pending cases.”

In that joint filing, the lawyers for the defendants said the Trump order only serves to make their case stronger, reinforcing their arguments that such claims are preempted by both the U.S. Constitution and federal law and must be dismissed. They further argue that the order “also reflects the consistent position of the federal government, across multiple administrations, that lawsuits such as Plaintiff’s that seek relief for harms allegedly caused by global climate change are precluded and preempted.”

In something of a twist, the defendants are also able to point to an amicus brief filed in the case by the Attorney General of South Carolina, Alan Wilson, who weighed in in support of their position.

“As the courts in both the City of New York and the City Council of Baltimore also recognized,” Wilson writes, “Congress’s enactment of the Clean Air Act does not change the fact that our federal structure and commitment to the equality of the States requires federal law to apply to claims over global climate change and preclude the application of state laws in such cases.” Wilson goes onto conclude, “that structural feature requires the Court to dismiss plaintiff’s claims as preempted,” adding, “To rule otherwise would be an affront to the dignity of all states and would violate the Constitution.”

Noting that “Virtually identical lawsuits — brought by the same plaintiffs’ attorneys — have been dismissed by multiple federal and state courts across the country,” Chevron attorney Ted Boutrous of Gibson Dunn & Crutcher LLP said in a statement that, “These claims based on interstate and international emissions are precluded and preempted by federal law and must be dismissed under clear U.S. Supreme Court precedent.”

The Future For This Lawfare Effort

At the end of the day, a clear court consensus appears to have coalesced related to this lawfare campaign, which has now involved years of hearings and filings in many separate jurisdictions, forcing the defendants to waste thousands of man hours and millions of dollars in defending themselves. The executive order issued by President Trump was an attempt to memorialize that consensus which has ruled in all but the case in Honolulu – which is still ongoing – and speed the end of this wasteful exercise.

Perhaps Judge Young will bring an end to this madness, at least in South Carolina. Such a judgment could help to prevent more cases from popping up in other jurisdictions governed by public officials willing to lend their state’s or city’s name this lawfare campaign.