Along with warmer weather and increasingly relaxed COVID restrictions, spring has brought us news about two of the revolutionary climate lawsuits that Sightline has been following. In Juliana v. United States, the judge overseeing the “youth plaintiffs” litigation has ordered the parties to begin settlement talks, ignoring for now the federal government’s request to dismiss the case outright. And in Baltimore v. BP, the city’s lawsuit against more than two dozen of the world’s largest oil and gas multinational corporations hit a snag when the US Supreme Court ruled in favor of the industry defendants, delaying the case and others like it while the courts continue to sort through the consequences.
These cases represent two larger categories of climate litigation: “trust” cases and “tort” cases. Trust cases focus on the policy failings of governments (typically state governments) in addressing climate change, while tort cases seek money damages directly from the corporations that are responsible for the extraction and promotion of fossil fuels. (For a deep dive into some of the legal theories involved, see our previous articles.)
Since 2015, when the Juliana lawsuit was originally filed in federal district court in Oregon, the plaintiffs have faced a sustained legal assault from US Department of Justice attorneys representing the government. The plaintiffs, children and young adults from across the country, repeatedly defied expectations—surviving two trips to the US Supreme Court—until 2020, when they suffered a major setback before the Ninth Circuit Court of Appeals. In a 2-1 decision, the court found that it was powerless to grant the plaintiffs the ambitious remedy they sought, namely an order requiring the government to phase out fossil fuel emissions in the United States.
The plaintiffs have vowed to continue the fight with a more modest, but still groundbreaking, request: a declaration from the court that the plaintiffs’ rights to a stable climate have been violated by the existence of the nation’s fossil fuel-based energy system. The federal court judge sitting in Oregon has to first approve the plaintiffs’ decision to scale back their remedy request, with the government responding that the case should simply be dismissed instead. Rather than immediately decide, the judge ordered the plaintiffs and the federal government to sit down and talk and urged the parties to devote meaningful efforts towards crafting a resolution.
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Like Juliana, Baltimore’s litigation against the oil giants has been winding its way through the court system for years. It is grounded in state tort law, applying well-worn concepts like trespass (“stay off my property!”) and nuisance (“stop bothering me!”) to the industry’s actions over the decades. And it is similar to the more than a dozen other lawsuits brought by states, counties, and cities across the country, including King County, Washington.
These lawsuits ask a fundamental question: who should pay? Jurisdictions are facing astronomical bills to address the harms associated with climate change: money needed to respond to blistering heat waves, inexorable sea-level rise, and seemingly-routine “100-year floods.” The plaintiffs maintain that the oil and gas companies bear much of that responsibility because they did far more than simply sell climate-damaging products. The industry raked in billions of dollars while undertaking a long-term campaign to downplay risks of burning fossil fuels, undercut well-grounded science, and deceive the public about its role in destabilizing the climate.
Virtually all of the cases against oil and gas companies were initially brought before state courts, but industry lawyers have worked hard to haul them before federal judges, believing that federal law will prove more favorable to their clients’ interests. The Baltimore case came to the US Supreme Court on a fairly technical point: what range of issues should a federal appeals court consider when deciding whether a case should stay in federal court or must be returned to state court? The city argued for a narrow scope; the oil and gas defendants preferred a much broader one.
In a 7-1 decision, the Supreme Court ruled in favor of the oil majors in BP PLC v. Mayor and City Council of Baltimore, though the victory may prove fleeting. The majority opinion recognized the potentially wide range of allowable issues but expressly refused to consider where Baltimore’s case appropriately belongs, so the lawsuit could eventually end up back in state court where it began. Still, the outcome adds to the delay, which is likely part of a deliberate strategy by Big Oil. As observed by Justice Sotomayor in her dissent, after three years, the city has yet to have a trial on its claims. And yet now Baltimore—like all of us waiting for comprehensive climate action—“is consigned to waiting once more.”