A Supreme Court decision that recently allowed Americans who were injured by acts of terror to sue Palestinian groups is being invoked in a climate lawsuit against the oil and gas industry.
The seemingly unconnected ruling could hinder the Puerto Rico climate case if the judge is persuaded that she lacks jurisdiction over the foreign companies named in the lawsuit. The high court’s ruling centered on a legal technicality called personal jurisdiction — which is used to determine whether a court has the power to make a decision about the parties being sued and if it can enforce the ruling.
Lawyers for the island’s cities and towns that filed the climate suit are urging the judge to adopt a broad standard — like that used in the Supreme Court decision. But the energy companies argue that the terrorism-related decision does not apply to the case against them, saying plaintiffs have failed to show that a strong connection exists between the companies and the island — such as fossil fuel facilities being located on Puerto Rico.
It’s unclear if the high court decision would influence dozens of other climate cases around the country, because most of them reside in state court and face different jurisdictional standards.
The unusual assertions by both sides came in response to a query about the high court decision from the judge overseeing the environmental case.
The Supreme Court ruled last month in Fuld v. Palestine Liberation Organization that Congress did not violate the Constitution when it passed a law in 2019 that expanded the jurisdiction of U.S. courts to hear terrorism-related suits against the PLO and the Palestine Authority.
The decision revived lawsuits that were brought on behalf of Americans killed or injured in a number of attacks in Israel, the most recent of which was a 2004 suicide bus bombing in Jerusalem.
Judge Silvia Carreño-Coll of the U.S. District Court for the District of Puerto Rico asked the parties in the climate lawsuit — which accuses the industry of deceiving the public about the dangers of fossil fuels — if the opinion affects the case.
The issue at stake is personal jurisdiction — which determines if a court has authority over the groups being sued. The foreign companies in the case, including BP, Shell and the mining companies, BHP Group and Rio Tinto, have argued that the court does not have the power to take up the case because the companies lack the “minimum contact” with Puerto Rico that is required by law to bring a case.
But Carreño-Coll asked whether the Supreme Court decision altered that argument, by potentially offering “more flexible jurisdictional inquiry commensurate with the federal government’s broader sovereign authority.”
Turf fight
The Supreme Court’s decision in Fuld overturned a ruling from a federal appeals court declaring that Congress had violated the Fifth Amendment’s guarantee of due process with the law when it passed the 2019 law.
In a unanimous opinion by Chief Justice John Roberts, the high court cited the history of U.S. interaction with the Palestinian entities and the “sensitive foreign policy concerns” behind Congress’ choice to authorize federal courts to hear terrorism-related cases brought under the 1990 Antiterrorism Act.
Still, Roberts insisted the ruling was not a signal that Congress could subject any foreign entity to litigation in the U.S. over any conduct at any time.
But the Puerto Rican cities and towns that in 2022 became the first in the United States to bring racketeering charges against oil companies argue that there are parallels between the Antiterrorism Act cited in Fuld and the Racketeer Influenced and Corrupt Organizations Act, or RICO, which part of their climate lawsuit relies on. That link, they argue, should allow the court to use the broader sweep of personal jurisdiction as found in the Fifth Amendment and hear the case.
“The injuries at issue — rising sea levels, devastating hurricanes, infrastructural degradation, and public health consequences — are national in scope and stem from coordinated, nationwide enterprise conduct that Congress specifically authorized RICO and related statutes to address,” the municipalities argue, calling their venues “among the most climate-vulnerable jurisdictions in the country.”
They also argue that the communities “have a vital and legitimate interest in securing redress through the very statutory framework Congress designed for precisely such complex, multijurisdictional misconduct.”
They say they have met the burden of proving contact between each of the defendants and the United States.
“In particular, foreign defendants BP, Shell, BHP, and Rio Tinto are subject to personal jurisdiction through public trading on U.S. exchanges, engagement in climate-related disinformation via domestic trade associations, and the sale of fossil fuels throughout U.S. markets, including Puerto Rico,” the filing argues.
The municipalities also contend that the burden on the companies is “minimal” and that being hauled into federal court is “neither unfair nor unexpected.”
‘Sow confusion’
The companies, however, said Fuld confirms that the court lacks jurisdiction over them, arguing that the challengers’ view of the ruling is “overly simplistic and wrong.”
The high court made clear that the “Constitution confers upon the federal government — and it alone — both nationwide and extraterritorial authority,” the companies’ brief states. And it argues that the court confirmed that “matters of foreign policy (which Defendants here contend includes global climate change) involve ‘delicate judgments’ that are ‘the prerogative of the political branches to make,’ not courts or juries.”
The brief also says that the court did not extend its finding to all cases filed in federal court and that Fuld supports the companies’ argument that non-federal governments cannot apply laws to certain interstate and international conduct.
All the “foreign defendants” are incorporated in and headquartered outside the United States and Fuld does not grant Puerto Rico courts jurisdiction to haul state or foreign defendants into court, the companies argue.
With regard to the merits of the case, they say Fuld bolsters their argument that the Constitution “precludes and preempts the application of Puerto Rico law to claims involving interstate and international emissions.”
The companies contend that the issues in Fuld involved terrorism and national security, “a quintessentially federal issue, just like global climate change, national and international energy policy, and related national security and foreign policy issues.”
And because the municipalities seek to “impose liability” for the companies’ production and marketing of fossil-fuel products, “they would necessarily affect the relations of the United States with other countries.”
The outcome of the lawsuits would “obviously sow confusion and needlessly complicate the nation’s foreign policy,” the companies argue, saying Fuld found that “the Constitution and our federal structure allocates the power to control foreign relations solely to the federal government.”
The Puerto Rican communities joined dozens of cities, counties and states suing the industry. Its complaint against Exxon Mobil, BP, Chevron and other companies argued that the oil giants knew their products would cause temperatures to warm and marketed them using unfair and deceptive trade practices.
The industry maintains it was selling a legal product that was central to U.S. security. If the cases are successful, the industry could have to pay billions of dollars for costs related to rising tides, more frequent wildfires and other effects of climate change.
The government of Puerto Rico, which filed a lawsuit last July that was similar to the municipalities’ case, withdrew the $1 billion lawsuit in May after the Trump administration sued two states in an effort to block climate litigation.
This story also appears in Energywire.
