Over halfway through Biden’s term, Attorney General Merrick Garland is maintaining the Trump Justice Department’s position in an alarming number of legal cases. Our litigation tracker documents approximately 40 such cases across education, immigration, the environment, criminal justice, transparency, agriculture and other issues. It is by no means a comprehensive list.
While some continuity in litigation positions between administrations is the norm, the Trump administration decisively broke from normality. The former president weaponized the Justice Department as if it were his personal legal team. His ideological loyalists throughout the department flouted ethics and precedent in service of their goals. Yet Garland has maintained an institutionalist approach that may preserve extremist positions.
One of the most important examples is a series of city, county and state-led cases against oil and gas companies. I wrote at length about these cases for Washington Monthly last summer.
Over the past several years, dozens of local and state governments have sued fossil fuel companies, including Exxon, Chevron, Shell, BP and ConocoPhillips, under a variety of state laws. The Attorneys General of Rhode Island, Minnesota, Massachusetts, New Jersey, Delaware, Vermont, Connecticut and D.C. have brought cases against fossil fuel companies, as have cities and counties in Maryland, Colorado, Hawai’i, California and elsewhere.
Their lawsuits focus on the oil companies’ failure to warn consumers about their product’s harms; consumer protection claims of corporate deception and misrepresentation; and common law tort claims of nuisance, trespass and negligence.
The fossil fuel companies want the courts to determine that these issues are not governed by state law at all, but by federal common law — which would effectively extinguish the claims. The 2011 Supreme Court case AEP v. Connecticut determined that states and cities cannot bring federal common law claims against fossil fuel facilities for creating planet-warming emissions.
The Trump Justice Department filed several amicus briefs on the side of the oil and gas companies. Between 2018 and 2021, the Justice Department sided with Chevron against Rhode Island before the Rhode Island Superior Court; with BP against Oakland and San Francisco at the district court level and then before the Ninth Circuit; with BP against New York before the Second Circuit; and with BP against Baltimore before the Supreme Court. Much of this work was overseen by former head of the DOJ environmental division Jeff Clark, who weaponized the Justice Department in service of Trump’s scheme to discredit the 2020 election. Clark is currently under criminal investigation.
In spring 2021, several state attorneys general pushed Garland to fulfill Biden’s explicit campaign pledge to support “ongoing plaintiff-driven climate litigation against polluters.” They urged the Justice Department to reverse its positions, particularly as fossil fuel companies “continue to cite DOJ’s prior briefs as if they represent DOJ’s current positions.”
State attorneys general are not the only officials who have called on the Justice Department to do differently. As I wrote for Washington Monthly, during Trump’s presidency, a group of then-former government officials filed an amicus brief in Rhode Island v. Chevron rebuking the Trump DOJ’s position as a “factual misunderstanding of U.S. climate diplomacy.” Nine of the thirteen signatories to that brief later ended up at the top of Biden’s administration:
- Antony Blinken, Secretary of State
- Wendy Sherman, Deputy Secretary of State
- William Burns, CIA Director
- Avril Haines, National Intelligence Director
- Susan Rice, Director of the Domestic Policy Council
- John Kerry, Special Presidential Envoy for Climate
- Susan Biniaz, Deputy to the Special Presidential Envoy for Climate
- Gina McCarthy, White House National Climate Adviser (2021-2022)
- Jonathan Pershing, Deputy Special Envoy for Climate (2021-2022)
Yet nearly two years later, despite clear support from these state attorneys general and top-level Biden administration officials for a reversal in these cases, the Justice Department has not taken action.
SCOTUS and Suncor Energy v. Boulder County Commissioners
In October 2022, the Justice Department got its strongest push yet to finally articulate its position in these cases. The Supreme Court is deciding this term whether to grant the fossil fuel companies’ appeal in Suncor Energy v. Boulder County Commissioners, a climate liability case initially brought by two Colorado counties and a municipality in state court. The Tenth Circuit agreed that state court is where the case belongs. SCOTUS previously denied a similar petition in Chevron Corp. v. City of Oakland in 2021. While the Court weighs granting this petition, it has invited Solicitor General Elizabeth Prelogar to file a brief expressing the views of the United States in this case.
It is hard to overstate the significance of the position the Justice Department chooses to take. If the Justice Department asserts that these are state law claims which should be heard in state court — as the First Circuit, Third Circuit, Fourth Circuit, Ninth Circuit and Tenth Circuit have all held — it materially increases the likelihood that the Supreme Court will decline to grant review in this case.
Overcoming these prolonged procedural battles over jurisdiction and moving on to discovery is what oil companies most fear. The environmentally-minded plaintiffs in these cases are hoping to follow a similar roadmap to the enormously successful state-level tobacco and opioid lawsuits in recent decades, which secured billions of dollars for recovery efforts. The first case to succeed on the merits could open a floodgate of claims for relief, emboldening efforts to have major polluters foot the bill for climate mitigation and adaptation around the country.
On the other hand, if the Justice Department doubles down on its Trump-era position, it would increase the likelihood that the right-wing, corporate-friendly Supreme Court would grant review of the oil and gas companies’ petition. Best case scenario, SCOTUS review would delay progress in these cases around the country, but ultimately decisively settle jurisdiction at the state level. Worst case scenario, the Court would create a new exception in the law in order to extinguish this avenue for accountability and relief.
The ball is in the Justice Department’s court. Frankly, it would be far more radical for the Solicitor General to maintain the arguments of her Trump-era predecessors — arguments struck down again and again by appellate courts around the country — than to change course and respect state court jurisdiction. As the Center for Climate Integrity’s Richard Wiles noted for Bloomberg Law in December, “Seventeen circuit court judges and 13 district court judges nominated by every president from Ronald Reagan to Donald Trump all agreed that climate accountability lawsuits filed in state court should proceed in state court.” But after two years of conspicuous silence from Garland’s Justice Department, we do not feel assured about its intentions.
Image: “Attorney General Merrick Garland delivers remarks to DOJ employees” is in the public domain.
