By Clark Mindock
(Reuters) – Major oil companies on Wednesday accused the federal government of “flip-flopping” when it told the U.S. Supreme Court that a lawsuit filed by several Colorado municipalities seeking climate change-related damages belongs in state court.
The justices had requested the Biden administration’s opinion on a petition filed by ExxonMobil Corp. and Suncor Energy Inc. challenging a February 2022 federal appeals court’s ruling that sent the case back to state court, a venue generally considered more favorable to the municipal plaintiffs.
In its brief, the government largely agreed with the Denver-based 10th U.S. Circuit Court of Appeals, which concluded none of the grounds cited by the companies to change the venue supported federal court jurisdiction.
But the oil companies said Wednesday that the government’s opinion was an about-face from the position taken just two years ago by the Trump administration and suggested the new thinking reflected a “desire to signal virtue” to political allies — not a genuine disagreement on legal theory.
“Rarely has this court seen a more cynical change in position,” the oil companies said.
The U.S. Department of Justice didn’t immediately respond to a request for comment.
The venue question is a key point of contention in roughly two dozen lawsuits filed by states and municipalities accusing major oil companies of concealing and misrepresenting the dangers associated with burning fossil fuels.
The companies have denied the allegations and have argued the lawsuits should be heard in federal courts because they involve issues of national importance like energy policy and greenhouse gas emissions that cross state or international lines.
A representative for the Colorado municipalities on Wednesday said that six federal appeals courts have now rejected the oil companies’ venue arguments, and urged the Supreme Court to follow suit.
The case, if the Supreme Court elects to take it, would give the high court a second chance to clarify which venues should hear the lawsuits filed by state and local governments, including Rhode Island, Delaware, Honolulu and Baltimore.
The high court first considered the jurisdiction question in 2021 in Baltimore’s case. It issued a narrow ruling telling the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals to reconsider arguments for removal raised by the oil companies in that case, but didn’t weigh in directly on which courts were proper.
The case is Suncor Energy Inc. et al. v. Board of County Commissioners of Boulder County et al., U.S. Supreme Court of the United States, case No. 21-1550.
For the energy companies: Kannon Shanmugam, Theodore Wells, Daniel Toal and William Marks of Paul Weiss Rifkind Wharton & Garrison, Hugh Gottschalk and Eric Robertson of Wheeler Trigg O’Donnell.
For the municipalities: Marco Simons, Richard Herz, Michelle Harrison and Sean Powers of EarthRights International, David Bookbinder of the Niskanen Center and Kevin Hannon of the Hannon Law Firm.
For the U.S. government: Solicitor General Elizabeth Prelogar, Assistant Attorney General Todd Kim and Deputy Solicitor General Malcolm Stewart.
