The US Supreme Court on Tuesday grappled with a dispute that a court called a "close call" over a lawsuit filed by the city of Baltimore against energy companies seeking monetary damages for the impact of global climate change.
The judges heard arguments over a legal issue over a conference call that will help determine whether the lawsuit and similar lawsuits will be heard in a state court, as the city would like, or in a federal court, which corporate defendants generally view as a more favorable event venue . The arguments did not address the merits of Baltimore's claims.
The City of Maryland targeted 21 US and foreign energy companies that extract, produce, distribute, or sell fossil fuels, including BP PLC, Chevron Corp., Exxon Mobil Corp. and Royal Dutch Shell PLC.
Some of the eight judges who took part in the case seemed skeptical of Baltimore's attorneys.
The court has a Conservative 6-3 majority, but Conservative Judge Samuel Alito did not participate, likely because he owns stock in two oil companies involved in the lawsuit. If the court is divided 4-4 in the final verdict – due in late June – an earlier decision in Baltimore's favor by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, hold on.
"I think this is a close call," said Conservative judge Brett Kavanaugh.
But Kavanaugh pointed out, among other things, that Baltimore's arguments contradicted a 1996 ruling written by the late Liberal Judge Ruth Bader Ginsburg.
"It's never right to be on the wrong side of Justice Ginsburg's opinion," said Kavanaugh of his former colleague who died in September.
The outcome could affect about a dozen similar lawsuits from US states, cities and counties.
Baltimore and the other jurisdictions are seeking state law damages for the damage they say they have suffered as a result of climate change, which they attribute in part to the companies' role in the production of fossil fuels that produce carbon dioxide and other greenhouse gases. The claims relate to oil production and marketing, not the harmful emissions themselves.
For example, the plaintiffs have said they should spend more on infrastructure, such as flood control measures to counter sea level rise due to a warming climate.
The legal question concerns a provision of United States law that restricts appeals courts that review decisions of federal district court judges to refer a case back to state court. The companies have said that the 4th Circuit in this case had a broad scope to review a district court's decision due to a provision allowing appeals against such rulings when a case relates directly to federal officials or government agencies.
Liberal Judge Stephen Breyer noted that the applicable law was enacted to avoid delays in resolving cases, and that could be the opposite if the energy companies were given a broad right of appeal.
"That means more time, extra delay," said Breyer.
The energy companies have argued that oil production is an inherently federal issue, meaning the matter should be heard in federal court. Greenhouse gas emissions crossing national and international lines are also an issue that cannot be addressed under state laws, the companies claimed.
Conservative judge Amy Coney Barrett did not listen to some activists' calls that she would not participate because her father previously worked as a lawyer for a subsidiary of Shell.
With Congress divided over climate change, the lawsuits are the last attempt to force action through lawsuits rather than legislation.
With Democrats in control of Congress and Democratic President-elect Joe Biden taking office on Wednesday, the role of big oil in climate change may attract renewed attention.
In a separate case, a federal appeals court on Tuesday threw out a watered-down replacement by President Donald Trump's administration of a regulation enacted under his predecessor Barack Obama aimed at curbing greenhouse gas emissions from coal-fired power plants.
(Reporting by Lawrence Hurley; edited by Will Dunham)
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