The Supreme Court’s recent decision allowing fossil fuel producers to bump a swath of Louisiana coastal erosion lawsuits from state to federal court was a win for the oil industry — but the ruling is already being cited as a way to keep alive an array of climate lawsuits against many of the same companies.
Hours after the justices issued their decision, the case popped up in oral arguments in an Oregon courtroom.
Richard Schechter, an attorney for Oregon’s Multnomah County, which is suing fossil fuel companies for contributing to a deadly 2021 heat wave, pointed to the ruling as he sought to fend off the industry’s attempt to halt his client’s lawsuit until the Supreme Court reviews a bid by the oil industry to end the case and dozens of others like it.
The 8-0 decision in Chevron v. Plaquemines Parish, led by Justice Clarence Thomas, found that because Chevron and other producers could reasonably tie their oil operations to demands made by a “federal officer,” lawsuits challenging their activity in Louisiana should be heard in federal court.
Schechter noted that Thomas’s opinion included a nod to the the swath of climate liability lawsuits filed against oil companies by local governments across the country. Thomas attempted to distinguish the lawsuits from the Louisiana case by writing that a federal appeals court in Washington found two climate lawsuits could proceed in state courts because they involved complaints about fossil fuel companies’ deceptive advertising, which he said “did not relate” to oil production for the government.
Like the litigation referenced by Thomas, Multnomah County’s lawsuit centers on deceptive advertising claims to make its case that the fossil fuel industry should be held financially responsible for climate change, Schechter told the judge. But he said oil companies seeking to pause the county’s lawsuit are linking it to a climate case from Colorado that the Supreme Court will review next term, which raises deceptive advertising claims, but also targets oil and gas production.
Industry lawyers have argued that pausing proceedings in Multnomah County’s case would promote judicial efficiency because the Supreme Court could bar the climate lawsuits. Schechter argued that the county would be injured by a stay by losing valuable time and that the Supreme Court is unlikely to release a decision that knocks out his client’s lawsuit.
Judges in California and Washington state have agreed to freeze climate cases pending a Supreme Court decision, which is not expected until 2027. A Hawaii judge has declined the industry’s request to stay the state’s case against the oil industry, and a Chicago judge granted only a partial stay, allowing some of the city’s climate case to proceed.
Multnomah Circuit Court Judge Adele Ridenour is expected to rule in the Oregon case shortly.
Still, legal analysts on both sides of the climate litigation say Plaquemines — despite being a win for the oil industry — will have little effect on the climate lawsuits because the issue at the heart of the Louisiana case — whether Chevron’s conduct triggered the federal officer removal statute — is no longer a factor in their legal battle.
Federal officer removal “was the fight in the climate litigation three, four years ago,” said Phil Goldberg, special counsel to the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes climate liability litigation. “It’s well past that at this point, and so even [Thomas’s] aside in Plaquemines is not going to affect the climate cases procedurally or substantively.”
In the hopes of securing more favorable venues in the climate litigation, oil companies had argued the federal removal statute meant the cases should be heard in federal rather than state court. But the argument failed, and the industry is now making the case that federal law bars the climate lawsuits in the first place.
“It’s no longer about which ballpark we’re playing in,” Goldberg said. “It’s about whether the rules support the lawsuits in whichever ballpark we’re in.”
Federal officer removal had been raised in every climate case, but judges found it to be a bad fit, said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, which tracks the litigation.
Thomas’s reference to the climate cases, Gerrard said, suggests he’s providing an example where “the federal role is so remote that the federal officer removal statute would not apply.”
Chief Justice John Roberts raised concern during the Plaquemines arguments about an overly broad interpretation of the federal officer statute, said Pat Parenteau, emeritus professor at the Vermont Law and Graduate School, who has provided pro bono advice to one of the law firms behind the climate cases.
“I suppose [Thomas’s mention of the climate cases] does give a benchmark for the kind of action that is not related at all to production or refining of oil,” Parenteau said. “But I don’t think you can make anything more of it.”
Companies involved in climate litigation are now arguing that federal law preempts the lawsuits, Parenteau said.
“Plaquemines is a federal officer case, and the companies are no longer making a federal officer case,” Parenteau said. “They’re not saying these cases should go to state court. They’re saying these cases should not be filed in the first place.”
Thomas’s mention of climate lawsuits in Plaquemines is interesting for “what it does not say,” said Donald Kochan, a professor and deputy executive director of the Law and Economics Center at George Mason University’s Antonin Scalia Law School.
He noted the reference to the climate lawsuits points only to judgments in two lawsuits — filed by Washington and Minnesota — that did not bring pollution-related claims. Instead, the lawsuits contend oil companies violated consumer protection laws by providing misleading advertising.
“I think what [Thomas] is saying is, ‘Hey, if you bring a case that’s just about consumer fraud, and you don’t have any other claims, there’s no basis for removal,’” Kochan said. “But the fact he purposely chose not to cite any cases that have production or refinery claims in them is telling. He’s not saying anything about the cases that would get at core activities.”
Jonathan Adler, a conservative legal scholar and professor at William & Mary Law School, said another recent Supreme Court decision could be relevant to the climate cases.
In Hencely v. Fluor, decided last week, the justices ruled that a soldier injured in a suicide bombing on an American base in Afghanistan can sue a military contractor in state court for failing to supervise the employee who built the explosive vest.
Former Army specialist Winston Hencely sued Fluor Corp. after an Army investigation faulted the company’s failure to supervise Ahmad Nayeb, an Afghan employee.
Texas-based Fluor argued it could not be sued because it was working during wartime for the federal government..
But in a 6-3 ruling written by Thomas, the majority found that companies are protected when fulfilling government contracts — but that Fluor failed to deliver on its duties.
Thomas has been skeptical of overly broad federal preemption, or displacement of state law. He wrote the lower court “held Hencely’s claims preempted, even though the conduct complained of was neither ordered nor authorized by the federal government.”
“No provision of the Constitution and no federal statute justifies that preemption of the state’s ordinary authority over tort suits,” he continued. “Nor does any precedent of this court command such a result.”
Justice Samuel Alito said in a dissent the lawsuit should be barred because it intruded “on the federal government’s exclusive power to make war and conduct combat operations.”
The decision, Adler wrote on the social media platform X, “highlights that the conservative justices are not uniformly in support of broad preemption, particularly where there is no basis for preemption in statute. This may be relevant in next term’s big climate case.”
