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By Lesley Clark | 06/06/2024 06:35 AM EDT
Groups backed by Trump judicial adviser Leonard Leo are leading a media campaign to convince the justices to release oil companies from climate lawsuits.
Conservative judicial activist Leonard Leo. Carolyn Kaster/AP
This story was updated at 3:08 p.m. EDT.
Allies of the fossil fuel industry and former President Donald Trump’s judicial adviser are mounting an unprecedented pressure campaign to convince the Supreme Court to side with the fossil fuel industry in a long-running legal dispute that could put oil and gas companies on the hook for billions of dollars.
The court is scheduled to meet Thursday to discuss whether to take up the oil industry’s latest request to dismiss dozens of lawsuits filed by U.S. cities, states and counties seeking to hold Exxon Mobil, Chevron and other companies financially accountable for lying about the dangers of burning fossil fuels. The justices could grant or reject the petition in the coming days.
Ahead of the justices’ discussion of the petition, Sunoco v. City and County of Honolulu, climate litigation critics, including those with ties to judicial activist Leonard Leo, have penned opinion pieces in conservative outlets and taken to social media with entreaties for the high court to intervene.
“Honolulu is attempting to use the law of one state to dominate the others, seizing for itself the power to control and regulate through judicial decree nationwide economic activity,” Carrie Severino, a Leo ally and former clerk to Justice Clarence Thomas, wrote this week in the National Review.
The high court’s intervention would “prevent an assault on federalism,” wrote Severino, the president of JCN, once known as the Judicial Crisis Network and registered with the IRS as the Concord Fund. The fund is among the network of tax-exempt nonprofits led by Leo, co-chair of the Federalist Society and a judicial activist who helped select Trump’s Supreme Court nominees.
Sunoco v. Honolulu is one of thousands of petitions filed with the Supreme Court each term. Each has only a small chance of being reviewed by the justices. The Supreme Court has gotten involved in the climate liability cases once before, siding with the oil industry in 2021 on a hypertechnical question in their quest to bump the litigation from state to federal judges.
Since then, federal judges have largely agreed to let the cases proceed in state court, and the Supreme Court has declined to weigh in again.
In addition to the media campaign surrounding Sunoco v. Honolulu, Republican attorneys general in 19 states last month took the unusual step of launching their own bid to kill lawsuits filed by some of their Democratic counterparts. The plea invokes the Supreme Court’s exclusive jurisdiction in legal battles between states.
All of the Republican attorneys general involved in the state plea are listed as members of the Republican Attorneys General Association, which has counted the Concord Fund as one its biggest contributors. Many of the same red states also filed a “friend of the court” brief siding with the oil industry in the Honolulu case.
The Center for Climate Integrity, which has encouraged local governments to seek litigation as a way of forcing oil companies to pay for the costs of climate change, said the fossil fuel industry is intensifying its efforts to persuade the conservative-dominated Supreme Court to quash the lawsuits.
“This looks to be the most aggressive campaign yet to influence the court on behalf of Big Oil,” said Kert Davies, the group’s director of special investigations. “The fossil fuel industry and its allies are clearly threatened by these legal efforts to hold them accountable, and they’re going to unprecedented lengths to send out distress signals in the hope they’ll be rescued from standing trial.”
Indeed, the industry’s Honolulu petition has attracted twice as many amicus briefs as the oil industry’s last effort to get the climate liability cases tossed, which the court rejected in January.
The court noted at the time that Justice Brett Kavanaugh would have granted the case. It takes the vote of four justices to hear a case.
The attention the climate liability cases are currently drawing outside the courtroom is “out of the ordinary,” said Jenny Rushlow, dean of the Maverick Lloyd School for the Environment at Vermont Law and Graduate School.
“In our profession it is considered pretty untoward for attorneys to try to influence judicial outcomes through the media as baldly as we’re seeing here,” she said. “Between the media campaign and the recent lawsuit from conservative state AGs, the oil companies’ desperation is showing.”
Sunoco’s petition, filed in February, asks the justices to overturn a 2023 Hawaii Supreme Court decision that blocked oil companies from dismissing Honolulu’s lawsuit against them.
Like other climate liability cases nationwide, Honolulu’s challenge raises claims under state consumer protection and public nuisance laws. Oil companies argue that because the lawsuits address climate change, they are better handled by federal judges, who industry attorneys believe are more likely to find that fossil fuel producers should not be forced to pay for disasters fueled by rising temperatures.
The Alliance for Consumers, another Concord Fund trade name, is running a Facebook ad encouraging the Supreme Court to review Sunoco v. Honolulu and kick the cases out of state court, Rolling Stone reported last week.
A two-minute video on the group’s profile — which also appears on X — accuses “progressive activists” of expanding the use of public nuisance lawsuits to go after bigger targets such as climate change.
“To end this nuisance charade, the Supreme Court needs to take up the Honolulu case,” the video says, urging the justices to “declare once and for all that public nuisance is for local issues, not global climate change.”
O.H. Skinner, executive director of the Alliance for Consumers, recently published an article in the Harvard Journal of Law & Public Policy, billing Sunoco v. Honolulu as a potential “blockbuster.” Skinner and his co-author, Beau Roysden, worked as solicitors general under former Arizona Attorney General Mark Brnovich, a Republican.
Skinner and Roysden argue that the justices could limit state-based public nuisance litigation to local issues, “rather than allowing these cases to reach beyond state boundaries and be used as a cudgel to wage nationwide policy fights through the courts.”
Skinner said the group has sought to raise awareness about the “dangers of public nuisance litigation for well over a year.” He charged that the lawsuits represent a “coordinated, dark-money-fueled threat to everyday consumers.”
The Wall Street Journal’s editorial page also weighed in this week, calling the climate liability lawsuits “unconstitutional coups” and asking the court to intervene.
Authors of other opinion pieces include two professors at George Mason University’s Antonin Scalia Law School, which in 2016 received a $30 million gift brokered by Leo. Donald Kochan, a law professor at George Mason, wrote in The Hill last month that the Supreme Court needs to resolve the battle over whether the climate liability cases belong in state or federal court.
“Cash-strapped states, counties and municipalities see climate-related damage awards as a way to solve their budgetary problems,” Kochan wrote. “And of course the fee-seeking plaintiffs attorneys with whom they are partnering see a chance to make bank.”
Other conservative lawyers have argued that federal law does not preempt the climate liability lawsuits in the way the oil industry appears to hope it might.
Congress has “never expressly and knowingly enacted a statute regulating greenhouse gas emissions,” said Jonathan Adler, founding director of the environmental law center at Case Western Reserve University, during a recent event hosted by Leo’s Federalist Society.
He added that there is a long history of states using various methods to deal with environmental problems — “including those that extend beyond their borders.”
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