A congressional referral and a Supreme Court request offer the Justice Department a twofold chance to hold Big Oil accountable for its lies.
This article was originally published in The American Prospect. Read it on the original site.
President Biden’s Justice Department has been offered two opportunities to act on holding oil and gas companies responsible for their deceit. It can protect state efforts to pursue accountability, and it can join them.
At the end of May, the House Oversight and Senate Budget committees concluded a nearly three-year investigation into the fossil fuel industry’s misleading marketing practices by officially referring their findings to the DOJ. Thousands of subpoenaed documents revealed the gap between oil and gas companies’ private plans and public messaging. For example, the companies privately acknowledged that natural gas doesn’t support climate goals when you take methane emissions into account, and that their business plans violate the Paris Agreement. Publicly, however, they touted gas as “clean” and a “bridge fuel,” and pledged their alignment with international climate treaties.
Sen. Sheldon Whitehouse (D-RI) and Rep. Jamie Raskin’s (D-MD) referral urged Attorney General Merrick Garland to launch an investigation into the fossil fuel industry’s violations of federal consumer protection and fraud laws. With dozens of city, state, and tribal governments already pursuing such cases under state laws, the DOJ, by not undertaking a parallel suit, remains the elusive dog that didn’t bark in this wave of lawsuits seeking to make polluters pay.
At the same time, the federal government has also been given a brief window in which it can influence the future of those state-level cases. On June 10, the Supreme Court asked the DOJ to offer the opinion of the United States on whether it should take up an industry petition. Sunoco, Shell, and several other fossil fuel companies have asked the Supreme Court to review the Hawaii Supreme Court’s decision to move forward with Honolulu’s lawsuit against the polluters.
Recent reporting has exposed that Leonard Leo, the “architect” of this hyper-conservative Court, is orchestrating a public influence campaign urging the justices he helped install to take up and shut down the Honolulu case. With Leo’s hand on the scale, the counterbalancing weight of the opinion of the United States is more important than ever. If the Biden administration does not weigh in before the end of the year, and if Biden is not reelected, then the door would swing wide open for a Trump DOJ to give the Supreme Court the cover it needs to demolish this avenue for relief.
A strong legal analysis from the Biden administration urging the Court to deny the petition could influence whether there are sufficient justices willing to take up the case. Four votes are needed, and Alito has recused himself from considering the petition because he owns stock in ConocoPhillips, one of the petitioners. (As I’ve previously written for the Prospect, Coney Barrett has refused to recuse herself from these cases despite her father’s 29 years of legally representing Shell, another of the petitioners, though the family connection previously prompted her to recuse herself while a circuit judge.)
When the Supreme Court invited the Justice Department to weigh in on a procedural matter in a comparable case brought by Colorado municipalities last year, it took Solicitor General Elizabeth Prelogar five months to file the brief, a delay which helped pave the way for the case to move forward in state court. Five months from now, we’ll be past the election.
After years of contesting these lawsuits on procedural grounds, the oil and gas companies have decisively lost the jurisdictional battle to move these cases to federal court, where they would face a dead end. Eight federal appeals courts have unanimously affirmed that these cases belong and should proceed in state court. Now the companies have pivoted to petitioning the Supreme Court to review whether the Honolulu case, and by extension parallel cases across the country, should be allowed to proceed on the merits.
The corporations seek to characterize the lawsuits as regulating interstate emissions in order to argue that the Clean Air Act should preempt the state law claims. The Hawaii Supreme Court determined last October that this was a mischaracterization, agreeing with the Honolulu government that the lawsuit was not seeking to regulate emissions, but “clearly seeks to challenge the promotion and sale of fossil-fuel products without warning and abetted by a sophisticated disinformation campaign.” This distinction is what the oil and gas companies want the Supreme Court to elide, thereby negating the state courts’ jurisdiction in these matters.
The companies are evidently aware of the scope of harm that they could be held responsible for. “Rarely does a case of such extraordinary importance to one of the Nation’s most vital industries come before this Court,” reads the Sunoco-led petition to the Supreme Court. “Energy companies that produce, sell, and market fossil fuels are facing numerous lawsuits in state courts across the Nation seeking billions of dollars in damages for injuries allegedly caused by global climate change.”
Billions of dollars in damages are indeed at issue. Honolulu seeks financial redress for the substantial and increasing costs that the city is bearing as a result of accelerating climate change, including from sea level rise, extreme heat, and disappearing fresh water. These material harms have been enabled by decades of deliberate conduct by the fossil fuel companies, knowing the damage their products cause and endeavoring to conceal and downplay it.
The companies acted with “actual malice,” Honolulu’s lawyers contend; they “had actual knowledge that their products were defective and dangerous … and acted with conscious disregard for the probable dangerous consequences of their conduct’s and products’ foreseeable impact upon the rights of others.” For instance, Honolulu points out that while publicly denying the reality of climate change, as early as the 1970s fossil fuel companies were making multi-billion-dollar investments in elevating offshore oil and gas platforms to insulate them from rising sea levels, and obtaining patents for drilling technologies designed to function in the melting Arctic.
The Justice Department should approach its Supreme Court filing and a federal investigation as a straightforward matter of doing its job with the speed and rigor required, leaving the politics to the White House. Politicization is inevitable, and it may not be to Attorney General Garland’s taste, but it would be to President Biden’s benefit. Like California Governor Newsom amplifying his Attorney General Bonta’s landmark lawsuit against Big Oil last fall, Biden could leverage this politically winning issue to distinguish himself from Trump on corporate accountability. Polling shows majority support from voters of all affiliations for making polluters pay, with a 2023 Data for Progress poll finding 70 percent of respondents, including 86 percent of Democrats and 57 percent of Republicans, support making fossil fuel companies “pay their fair share of the damage their pollution has caused.”
Conversely, Trump has invited Big Oil to bribe him, and pledged that if he is reelected, he will “stop the wave of frivolous litigation from environmental extremists.” Trump’s Justice Department went out of its way to wade into these cases on Big Oil’s behalf. Under the leadership of insurrectionist Jeff Clark, the DOJ filed briefs in support of the oil companies in cases brought by Baltimore, Oakland, New York, and Rhode Island. Clark has now been indicted in Georgia for his efforts to help Trump subvert the 2020 election, but continues to demonstrate his loyalty to Trump, having sat in the back of the New York courtroom during the former president’s trial in which he was convicted on 34 felony counts.
On the one hand, then, we have a convicted criminal who has previously empowered his loyalists to help corporate criminals evade accountability, and who has promised to finish the job if reelected. On the other hand, we have a president seeking to distinguish his legacy with democracy on the line, presented with two major chances to fulfill his campaign promise to strategically support lawsuits to hold polluters accountable.
Image: This photograph of President Joe Biden, Vice President Kamala Harris, Attorney General Merrick Garland, and DHS Secretary Alejandro Mayorkas is in the public domain.
