The Supreme Court’s recent decision to allow Louisiana coastal erosion lawsuits against fossil fuel producers to be brought in bulk from state to federal court was a victory for the oil industry, but the decision is already being cited as a way to keep a wave of climate change lawsuits against many of the same companies alive.
Hours after the justices issued their ruling, the case surfaced for oral argument in an Oregon court.
Richard Schechter, a lawyer in Multnomah County, Oregon, who is suing fossil fuel companies for contributing to 2021’s deadly heat wave, pointed to the ruling, which he said was an attempt by the industry to block his client’s lawsuit until the Supreme Court reviews the oil industry’s bid to end the case, and dozens of other companies seeking similar rulings.
The 8-0 decision in Chevron v. Plaquemines Parish, led by Justice Clarence Thomas, found that because Chevron and other producers could reasonably link their oil operations to the claims of “federal officials,” suits challenging their operations in Louisiana should be heard in federal court.
Schechter noted that Thomas’ opinion includes a nod to a series of climate change liability lawsuits brought by local governments across the country against oil companies. Thomas tried to distinguish this case from the Louisiana case by writing that a federal appeals court in Washington ruled that two climate change lawsuits could be tried in state court because they involved complaints about deceptive advertising by fossil fuel companies, which Thomas said “has nothing to do with” government oil production.
Like the case Thomas referred to, Schechter told the judge, the Multnomah County case centers on deceptive advertising to argue that the fossil fuel industry should bear financial responsibility for climate change. But he said the oil companies seeking a stay on the county’s lawsuit are linking it to a Colorado climate change case the Supreme Court will hear next term, which raises deceptive advertising claims but also targets oil and gas production.
Industry lawyers argue that a moratorium on proceedings in Multnomah County would promote judicial efficiency because the Supreme Court could bar climate change lawsuits. Schechter argued that the suspension would cost the county valuable time and harm, and that the Supreme Court was unlikely to rule against his client’s lawsuit.
Justices in California and Washington agreed to freeze climate-related lawsuits pending a Supreme Court decision, which is not expected until 2027. A Hawaii judge denied the industry’s request to halt the state’s lawsuit against the oil industry, and a Chicago judge granted only a partial stay, allowing parts of the city’s climate lawsuit to proceed.
Multnomah Circuit Judge Adele Ridenour is expected to rule on the Oregon case soon.
Still, legal analysts on both sides of the climate lawsuit say that while Plaquemines is a victory for the oil industry, it will have little impact on the climate lawsuit because the issue at the heart of the Louisiana case — whether Chevron’s actions triggered the Federal Employees’ Removal Act — is no longer a factor in the sides’ legal battles.
Retirement of federal employees “was a battle in climate litigation three or four years ago,” said Phil Goldberg, special counsel for the Manufacturer Liability Project, an initiative of the National Association of Manufacturers that opposes climate change liability lawsuits. “At this point, it’s way beyond that, and[Thomas’s]presence on the sidelines at Plaquemines will have no procedural or substantive impact on the climate litigation.”
Oil companies had argued that the federal removal law should be heard in federal rather than state courts in hopes of securing a more favorable venue for climate change lawsuits. But that argument failed, and the industry now argues that federal law prohibits climate change lawsuits in the first place.
“It doesn’t matter what ballpark you play in anymore,” Goldberg said. “The question is, no matter what ballpark we’re in, will the rules support a lawsuit?”
Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, who is tracking the case, said that while removal of federal employees has been invoked in every climate change case, judges have found it inappropriate.
Gerrard said Thomas’ reference to climate change litigation suggests it provides an example where “the role of the federal government is so remote that federal employee removal laws do not apply.”
Pat Parenteau, a professor emeritus at Vermont Law School who provided pro bono advice to one of the law firms behind the climate lawsuit, said Chief Justice John Roberts expressed concern during Plaquemines’ argument about an overly broad interpretation of the federal employee law.
“I think[Thomas’ mention of climate change issues]might provide a baseline for the kind of behavior that has nothing to do with producing or refining oil,” Parenteau said. “But I don’t think I can make anything more.”
Parenteau said companies involved in climate change lawsuits are now arguing that federal law preempts their cases.
“Plaquemines is a federal employee lawsuit, and companies are no longer filing federal employee lawsuits,” Parenteau said. “They’re not saying these lawsuits should go to state court. They’re saying these lawsuits shouldn’t be filed in the first place.”
Donald Kochan, a professor at George Mason University’s Antonin Scalia School of Law and deputy executive director of the Center for Law and Economics, said Thomas’ mention of the Plaquemines climate change lawsuit is interesting because “it shows what’s not being written.”
He noted that the reference to climate change lawsuits refers only to decisions in two cases brought by Washington state and Minnesota that did not bring pollution-related claims. Rather, the lawsuit alleges that the oil companies violated consumer protection laws by providing misleading advertising.
“I think what[Thomas]is trying to say is, ‘If you file a lawsuit alleging consumer fraud and there are no other allegations, there’s no basis for removal,'” Kochan said. “But the fact that he deliberately chose not to cite cases involving production or refinery claims is telling. He says nothing about cases involving core activities.”
Jonathan Adler, a conservative legal scholar and professor at William & Mary Law School, said another recent Supreme Court decision could also be relevant to climate change litigation.
In Henley v. Fluor, decided last week, the justices ruled that a soldier injured in a suicide bombing at a U.S. military base in Afghanistan can sue a military contractor in state court for failing to supervise employees who made explosive vests.
Former Army specialist Winston Huynry has accused Fluor of failing to supervise Afghan employee Ahmad Nayeb during an Army investigation.
Fluor, based in Texas, argued that it could not sue because it worked for the federal government during the war.
But in a 6-3 decision written by Thomas, the majority found that Fluor failed to meet its obligations, which protect companies when fulfilling government contracts.
Thomas was skeptical of broad preemption by the federal government or the replacement of state laws. He wrote that the lower court “held that Hisenley’s claims were preempted even though the acts charged were not ordered or authorized by the federal government.”
“No provision of the Constitution or federal law justifies the preemption of the states’ ordinary powers over tort actions,” he continued. “Nor is this court’s precedent leading to such a result.”
Justice Samuel Alito said in a dissent that the suit should be barred because it violates “the federal government’s exclusive authority to wage war and conduct combat operations.”
“This decision highlights that conservative justices do not uniformly support broad preemption, especially when there is no statutory basis for preemption. This may also be relevant to next year’s big climate lawsuits,” Judge Adler wrote on social media platform X.
