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Op-Ed | Washington Monthly | August 8, 2022

Why Is Merrick Garland Sticking with Donald Trump on Climate Lawsuits?

2020 Election/TransitionClimate and EnvironmentDepartment of JusticeIndependent Agencies
Why Is Merrick Garland Sticking with Donald Trump on Climate Lawsuits?

Under Trump, the Justice Department sided with Big Oil against states and cities suing over climate change. Biden’s DOJ hasn’t changed course. Why?

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It started with Boulder in early February. Then came Baltimore and San Mateo in April. Now Honolulu and Maui are the latest municipalities to overcome a crucial legal hurdle in their fight to make fossil fuel companies pay for their role in climate change. After years of obstruction, it looks like state courts will hear arguments from these cities—as well as several states—that big energy companies knowingly concealed and misrepresented the harms of their products, contributing to climate damages these regions face. Five federal appeals courts have green-lit suing the fossil fuel giants in state court, where these state and local governments have a better chance of prevailing. The stakes are massive: requiring fossil fuel companies to foot the bill for climate change–related damages to U.S. cities and states could easily run into the tens of billions.

Under President Donald Trump, the Justice Department went out of its way to side with Big Oil, backing BP, Chevron, ExxonMobil, Shell, and other companies against Oakland, San Francisco, Baltimore, New York City, and Rhode Island. At the time, the head of the DOJ’s environmental division was Jeffrey Clark, who is now famously under criminal investigation for supporting Trump’s plan to invalidate the election. (Trump even wanted to name Clark attorney general to abet his scheme but was talked out of elevating the little-known lawyer.) In April 2021, the attorneys general of five states and the District of Columbia wrote to Attorney General Merrick Garland, urging him to reverse the DOJ’s position. “The urgency and importance of DOJ reversing these positions cannot be overstated,” they stressed. “DOJ’s prior positions are misguided and contravene President Biden’s pledge to support lawsuits like the ones our states have filed.”

More than a year later, Garland has taken no action. Fossil fuel companies continue to cite the government’s arguments in their favor, making the strategic support that Biden promised for “ongoing plaintiff-driven climate litigation against polluters” worse than nonexistent.

Fossil fuel companies have been fighting these municipal-and-state suits for years, first by moving them from state to federal court. This fight over venue is essential, because if the plaintiffs’ claims were governed by federal law, they could swiftly be dismissed. That resulted from a 2011 Supreme Court decision, AEP v. Connecticut, which barred federal common law claims about climate change liability. The Court ruled that they were “displaced” by the Clean Air Act. But the decision left claims under state common law as an option. After AEP, cities and states turned to state courts to seek damages from the big energy companies.

With billions in penalties at stake, it’s no wonder that the federal government, former and current government officials, law professors, trade associations, advocacy groups, and dozens of cities and states are filing briefs in these cases. Most recently, the U.S. Conference of Mayors passed a resolution affirming its support for these lawsuits. Allies of the fossil fuel industry, such as business groups and conservative states, are in the mix. But of all these third parties, the federal government’s opinion is generally accorded the most weight in court.

At their core, these cases allege corporate deception. Pay Up Climate Polluters, a project of the Center for Climate Integrity supporting the lawsuits, argues that “the fossil fuel industry knew, they lied, and they should be held accountable for the consequences.” Each complaint cites fossil fuel companies’ own reports, internal communications, and commissioned research to show that the industry had knowledge of the disastrous effects of their products and, instead of being truthful about the dangers or curtailing their destructive impact, engaged in a decades-long campaign of misinformation.

There’s an obvious precedent for these cases in state courts: the massive tobacco settlement of the 1990s, in which attorneys general of 52 states and territories secured billions of dollars for health care costs from the largest tobacco companies. Like Big Tobacco, the case against Big Oil can be put simply: They knew and lied; they caused this crisis, so they should pay for it.

“Like the tobacco industry decades ago, the fossil fuel industry is desperately trying to postpone its ultimate reckoning for the harm it has caused,” Robert Percival, director of the Environmental Law Program at the University of Maryland, says. “Its days are numbered.”

Theodore J. Boutrous Jr., a partner at Gibson Dunn and lawyer for Chevron in several of these cases, says, “It’s interesting to note that administrations from both parties have argued that addressing climate change is a matter for policy makers and not the courts.” He quoted AEP’s finding that the EPA “is surely better equipped to do the job than federal judges, who lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.” Of course, six federal judges on the Supreme Court just undermined the EPA’s ability to do its job this summer with the Court’s June 29 opinion in West Virginia v. EPA.

The municipalities and states are pointing to the costs they’re shouldering because of climate change. The sea level is expected to rise by three feet along San Mateo’s shoreline by 2100, drowning ecosystems, parks, neighborhoods, and infrastructure alike. Baltimore faces dozens more extreme heat days per year, severe storms, and a four-in-five chance of flooding above nine feet by 2100. Boulder’s many injuries include wildfires, drought, flooding, extreme heat days, higher transmission of insect-borne diseases, and increased ground-level ozone pollution.

The suits allege that the energy companies misrepresented the harms of fossil fuels through subterfuge. They funded “dozens of think tanks, front groups, and dark money foundations pushing climate change denial.” Not mincing words, the attorneys for San Mateo wrote that the fossil fuel companies’ conduct was “so vile, base, and contemptible that it would be looked down upon and despised by reasonable people.”

Amicus filings have long been an efficient and cost-effective way for the Justice Department to articulate the government’s interest in outside cases. Under President Barack Obama, the Civil Rights Division of the Justice Department drastically increased its use of amicus filings to intervene in local civil rights cases. The New York Times describes the department’s involvement in these cases as narrowly targeted “to argue specific matters of constitutional law” but with broad impact. The amicus filings “give clear support to plaintiffs and put the federal government on the record in cases that are at the forefront of civil rights law.”

The DOJ under Trump put the government on record opposing the plaintiffs. But the department could change course. That would require Garland, who critics say is hampered by timidity and adherence to old norms, to do an about-face.

The Biden administration’s silence in these cases is exasperating for the plaintiffs, given Biden’s explicit pledge to support such suits.

During Trump’s presidency, a group of former government officials with foreign policy, international trade, and environmental policy experience entered the fray in Rhode Island v. Chevronfiling an amicus brief opposing the Trump Justice Department’s position that the allegedly global nature of the case would hinder American foreign policy. They swatted this away as a “factual misunderstanding of U.S. climate diplomacy.”

“The United States has no foreign policy interest in immunizing from judicial review corporate deception, misconduct, and concealment of the kind alleged by Rhode Island,” they said.

When Biden assumed office, nine of those former government officials wound up at the top of his administration: White House National Climate Adviser Gina McCarthy; Secretary of State Antony Blinken; Deputy Secretary of State Wendy Sherman; CIA Director William Burns; National Intelligence Director Avril Haines; Special Presidential Envoy for Climate John Kerry; Deputy to the Special Presidential Envoy for Climate Susan Biniaz; and Director of the Domestic Policy Council Susan Rice. They all voiced their explicit support for Rhode Island’s claims against Chevron. (As did Jonathan Pershing, the deputy special envoy for climate from 2021 to 2022.) Yet even with these officials in power, the Justice Department clings to the position it advocated under Trump.

Given the DOJ’s limited budget and resources, backing these suits is precisely the sort of low-cost, effective action that could advance Biden’s climate agenda. This legal avenue is even more attractive following the Supreme Court’s recent decision in West Virginia v. EPA, which limited one of the EPA’s tools to regulate greenhouse gas emissions under the Clean Air Act. Dan Farber, a law professor at the University of California, Berkeley, noted that there has been a “bargain with industry: accept EPA’s regulatory authority in return for immunity from suit.” But with the agency’s regulatory authority under attack and fossil fuel companies and conservative business groups hailing the West Virginia v. EPA decision “as a victory,” such a bargain cannot hold.

Which leads one to ask: Why? What’s going on at Main Justice? Why hasn’t Garland reversed course? Farber allows that Garland could be trying to avoid getting caught in the crossfire. He told me he could imagine, if the opinion in West Virginia v. EPA had been the worst-case scenario (which it wasn’t), “the administration might decide to take a much more supportive attitude toward the state cases, as the last remaining available tool.”

For Rhode Island v. Chevron, at least, the window for the DOJ to withdraw its Trump-era brief properly reopened in late May, when the First Circuit remanded the case back to state court. John C. Cruden, principal at Beveridge and Diamond and former head of the Environmental Division under Obama, stated, “I don’t know what DOJ is going to do. I only know that they now have a decision point … The state court did not have jurisdiction until the First Circuit resolved the removal appeal, so this would be the appropriate time for DOJ to consider what position they now believe is appropriate since jurisdiction is no longer an issue.” 

Just as many Americans are waiting with bated breath to see if Garland’s Justice Department will prosecute Trump, the environmental community has been waiting to see if the 69-year-old former prosecutor will reverse the department’s Trump-era position on these climate suits and join the fight. Throwing the federal government’s weight behind the governments fighting to hold fossil fuel companies accountable shouldn’t wait any longer.

IMAGE: “SCHUMER MEETS WITH JUDGE GARLAND” by Senate Democrats is available under an Attribution 2.0 Generic (CC BY 2.0) license.

2020 Election/TransitionClimate and EnvironmentDepartment of JusticeIndependent Agencies

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