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Supreme Court seeks Biden administration's views in major climate change lawsuits

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Washington — The Supreme Court on Monday asked the Biden administration to share its views in a pair of cases involving the city of Honolulu's efforts to hold major oil and gas companies accountable for the impacts of climate change.

The one-lined order from the court invites the solicitor general to submit a brief in two appeals of a Hawaii Supreme Court decision brought by the energy industry. Justice Samuel Alito did not participate in the consideration of the cases. Though he did not provide an explanation, it is likely because Alito owned stock in ConocoPhillips, one of the companies named in the suits.

The legal battle brought by Honolulu and pursued in Hawaii state court is similar to others filed against the nation's largest energy companies by state and local governments in their courts. Honolulu claims that the oil and gas industry engaged in a deceptive campaign and misled the public about the dangers of their fossil fuel products and the environmental impacts. 

A group of 15 energy companies asked the Supreme Court to review the decision from the Hawaii Supreme Court that allowed the lawsuit brought by Honolulu, as well as its Board of Water Supply, to proceed. The suit was brought in Hawaii state court in March 2020, and Honolulu raised several claims under state law, including creating a public nuisance and failure to warn the public of the risks posed by their fossil fuel products. 

The city accused the oil and gas industry of contributing to global climate change, which caused a number of harms including flooding, erosion and more frequent and intense extreme weather events. These changes, they said, have led to property damage and a drop in tax revenue as a result of less tourism.

The energy companies unsuccessfully sought to have the case moved to federal court, after which a state trial court denied their efforts to dismiss the case on the grounds that the claims raised by Honolulu under state law were overridden by federal law and the Clean Air Act.

The oil and gas industry has argued that greenhouse-gas emissions "flow from billions of daily choices, over more than a century, by governments, companies and individuals about what types of fuels to use, and how to use them." Honolulu, the companies said, were seeking damages for the "cumulative effect of worldwide emissions leading to global climate change."

The Hawaii Supreme Court ultimately allowed the lawsuit to proceed. The state's highest court determined that the Clean Air Act displaced federal common law governing suits seeking damages for interstate pollution. It also rejected the oil companies' argument that Honolulu was seeking to regulate emissions through its lawsuit, finding that the city instead wanted to challenge the promotion and sale of fossil fuel products "without warning and abetted by a sophisticated disinformation campaign."

"Plaintiffs' state tort law claims do not seek to regulate emissions, and there is thus no 'actual conflict' between Hawaii tort law and the [Clean Air Act]," the Hawaii Supreme Court ruled. "These claims potentially regulate marketing conduct while the CAA regulates pollution."

The oil companies then asked the Supreme Court to step in and urged it to stop Honolulu's lawsuit from going forward. Regulation of interstate pollution is a federal area governed by federal law, lawyers for the energy industry argued.

"Rarely does a case of such extraordinary importance to one of the nation's most vital industries come before this court," lawyers for the companies said in a filing. "Energy companies that produce, sell, and market fossil fuels are facing numerous lawsuits in state courts across the nation seeking billions of dollars in damages for injuries allegedly caused by global climate change."

The oil and gas companies argued the case raises a "recurring question of extraordinary importance to the energy industry," and one they urged the Supreme Court to address.

"In these cases, state and local governments are attempting to assert control over the nation's energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with the policies and priorities of the federal government," they said. "That flouts this court's precedents and basic principles of federalism, and the court should put a stop to it."

Lawyers for Honolulu said in a filing that the case seeks to hold the oil and gas industry liable under Hawaii law for "deliberately concealing and misrepresenting the climate-change impacts of their fossil-fuel products." 

Its lawsuit, the city continued, does not interfere with the Environmental Protection Agency's authority to regulate greenhouse-gas emissions. Honolulu's legal team accused the oil and gas companies of pushing a theory in the case that "improperly attempts to cloak the former federal common law of interstate pollution in constitutional garb, with no foundation in the Constitution's text or history."

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