The court will hear arguments on a technical legal question in a case that demands fossil fuel companies help pay for the costs of dealing with climate change.
The Supreme Court will hear a case on climate change on Tuesday that could help shape the fate of dozens of similar lawsuits across the country. But the justices might not even discuss global warming during the oral argument.
That’s because the hearing in BP v. Mayor and City Council of Baltimore is not about whether climate change is real or caused by greenhouse gases generated by humans. The hearing is not even about whether fossil fuel companies should pay Baltimore for the costs of climate change, which is the point of the underlying lawsuit.
Instead, the justices decided to hear the case on a single, highly technical legal question: What happens when a federal court sends a case to be heard in state courts? That is what has occurred in the Baltimore case, which began its life in state court, and which the fossil fuel companies are trying to move to federal court, where they expect a more favorable outcome. The question before the Supreme Court is whether, in hearing the appeal of a decision to send a case back to state court, a federal appeals court must limit its review to the two very specific and narrow reasons that the law allows, or whether it can look more broadly at the lower court’s decision.
Climate cases like Baltimore’s have been filed by cities, counties and states nationwide since 2017 — first in California, then spreading across the country to include Colorado, Minnesota and Rhode Island, as well as Hoboken, N.J.
What concerns some environmental law experts is that by allowing a broader review of the lower court’s decision, the justices might scuttle similar cases, or send a strong signal that the lower courts should do so. Sean B. Hecht, a co-executive director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles, School of Law, said that while the issue presented before the court was “hyper-technical,” the fossil fuel companies were “trying to make the court look at a much bigger question” as to whether the case should be governed by state or federal law. “It’s a pretty audacious ask” that essentially says, “While we’re here, it would save everybody time if you just help us get rid of this case now,” he said.
That’s why Patrick A. Parenteau, a law professor and an expert on environmental law at Vermont Law School, said that the case “could be anything from a nothing burger to a blockbuster.”
To the industry, climate cases should be the bailiwick of Congress and regulatory agencies. The case is really about “what is the appropriate use of the courts,” said Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, a group that opposes climate litigation and is part of the National Association of Manufacturers, which has links to FTI, a global consulting firm that promotes the agenda of energy companies.
Baltimore’s acting city solicitor, Dana P. Moore, said that the city filed its lawsuit in the state courts “because that is the appropriate forum for seeking accountability for localized harms.” She called the fossil fuel industry’s efforts to move the case to federal court “a delay tactic.”
Baltimore’s suit, initially filed in July 2018, argues that the city “is particularly vulnerable to sea level rise and flooding,” and that it has spent “significant funds” to plan for and to deal with global warming. The lawsuit also cites the cost of health-related issues associated with climate change, including increased rates of hospitalization in summer.
Michael Martin, the pastor of the Stillmeadow Community Fellowship, a church in Southwest Baltimore, said that the effects of climate change on the city were increasingly clear. “We’re on a trajectory to more flooding, and worse flooding,” he said. The church served as a community hub after ruinous flooding in May 2018 buckled roads and put seven feet of water in the streets. And the floods keep coming.
As for Baltimore’s case, he said, “I think it’s bold, and I think it’s useful.” But he suggested that focusing on fossil fuel companies alone was shortsighted, because other factors like development were major contributors to flooding as well.
As the date of the hearing has neared, a number of science and advocacy organizations, including the Union of Concerned Scientists, have called for the Supreme Court’s newest justice, Amy Coney Barrett, to recuse herself from the case because her father, Michael Coney, was for many years a leading lawyer and official for Shell, one of the defendants. As a Seventh Circuit judge, Ms. Coney recused herself from cases involving some Shell entities.
In response to written questions submitted after her nomination hearings, she said that she would “consider all factors that are relevant” to the question of recusal “when there is an appearance of bias.” She has not yet announced a recusal in this case. (Justice Samuel Alito, who owns stock in fossil fuel companies, has recused himself.)
To Lee Wasserman, the director of the Rockefeller Family Fund, which favors climate litigation as a way to hold companies accountable for their role in global warming, the need for Ms. Coney’s recusal is obvious. “Her first major decision on the court is whether to recuse on a case involving her father,” Mr. Wasserman said.
But Stephen Gillers, a professor at New York University School of Law and an expert on ethical rules for lawyers and judges, said he found such arguments unpersuasive. The possibility that Mr. Coney would be summoned as a witness in a later stage of the case is “speculative,” Mr. Gillers said, adding that being summoned as a witness “would not be recognized as an ‘interest’ that will lead to Barrett’s recusal.”
Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, said that he doubted the industry’s tactic to pry open a broader appeal would work. “The justices are very scrupulous about staying to the questions presented,” he said.
Professor Hecht of U.C.L.A. said he agreed that it was unlikely the justices would reach beyond the technical legal question directly before them. But, he added, “you never really know what the justices will do.”
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