The Supreme Court this week will consider an oil major’s fight to recapture assets seized decades ago by the Cuban government and an energy company’s bid to move litigation over one of its pipelines to a federal bench.
The cases, which present narrow questions to the high court, are among the energy and environment battles the justices are expected to decide by early summer.
On Monday, Exxon Mobil will argue that it should be able to sue Cuban-owned company Corporación Cimex for damages, after $70 million (in 1960 dollars) of the company’s oil and gas assets were seized by Fidel Castro’s government following the Cuban Revolution in 1959.
Exxon has received the backing of the Trump administration, which will be splitting argument time with the company.
A Supreme Court ruling in Exxon’s favor could open the door for other companies to pursue similar challenges to recover assets seized in Cuba, said Lawrence Ebner, executive vice president and general counsel at the Atlantic Legal Foundation, which wrote an amicus brief in support of Exxon.
“There are many other companies whose business property was seized” by the Castro government, said Ebner.
Exxon has relied on the Cuban Liberty and Democratic Solidarity Act — also known as the Helms-Burton Act — that Congress passed in 1996 to make it easier for U.S. companies to sue to recover their Cuban assets from a person or entity that “traffics” in the confiscated property.
However, Exxon was not able to pursue a lawsuit for decades after the law was passed because every president — until Donald Trump first entered the White House — had invoked a provision allowing them to block lawsuits they believed would harm the national interest.
After Trump allowed the litigation suspension to lapse in 2019, Exxon began its legal battle in federal court. But the company faced a new hurdle after a divided panel of federal appeals court judges in Washington ruled that in order to make a claim against a company owned by a foreign nation, Exxon also had to meet at least one of the exceptions under a separate law — the Foreign Sovereign Immunities Act, or FSIA. The law provides limited grounds for challenging a foreign nation in U.S. federal court.
The lower court’s reading of the law would make it much harder for Exxon and other companies to pursue legal claims in Cuba and would undercut the purpose of the Helms-Burton Act to enable speedy lawsuits, said Ebner.
“Those exceptions are difficult and burdensome to comply with,” he said, referring to FSIA.
“Maybe a big company like Exxon would have the wherewithal, the resources, to litigate for years whether to show one of the exceptions applies,” Ebner continued. “But a lot of other companies may not have those resources.”
Cimex has maintained that FSIA should apply because the provision of the Helms-Burton Act allowing companies to pursue legal action did not amend requirements under the foreign sovereign immunity law.
The case also raises broader legal questions, said Jenny-Brooke Condon, a professor at Seton Hall Law School, who wrote an amicus brief in the case on behalf of foreign relations and separation of powers scholars.
If the Supreme Court were to rule that the Helms-Burton Act overrides FSIA, the earlier of the two laws, it could create uncertainty, said Condon.
Under that scenario, Helms-Burton would also apply to foreign nations other than Cuba that may also have control of seized U.S. property, she said. Condon also noted that courts generally don’t recognize the implied repeal of statutes, and if the justices did so in this case, their ruling could carry over to other areas.
“We want Congress to be really, really clear when it intends to revise or repeal its own statutes,” she said.
“There is nothing in the Helms-Burton Act that suggests that Congress intended to throw out all the well-settled, 50-year-old rules that we normally employ to determine whether or not there can be a judgment against a foreign sovereign,” Condon said.
Line 5
The justices are set to return for a second energy case Tuesday, when they will weigh whether Enbridge Energy should be allowed to move a legal challenge over its Line 5 oil pipeline from state to federal court.
Enbridge has claimed that a federal appeals court got it wrong when it said a lower bench could not waive a 30-day deadline for the company to request the venue change.
The case is the latest example this term of the Supreme Court addressing when cases should be considered before a state or federal bench. In January, the justices heard oral arguments in a case that asked the court to allow oil majors to transfer challenges seeking damages for coastal erosion in Louisiana to federal courtrooms.
“We’re going to understand how federal removal works a lot better at the end of this term than we did going in,” said Zac Morgan, senior litigation counsel at the Washington Legal Foundation, which wrote an amicus brief supporting Enbridge.
He said Enbridge’s case is an example of a circumstance in which a district court should be able to waive certain deadlines in a statute, also referred to as a time bar.
“The ability to waive a time bar for really good reasons has always been within the discretion of the district courts,” said Morgan.
But Debbie Chizewer, managing attorney at Earthjustice’s Midwest office, said it’s also important to consider what’s at stake in the underlying case. Earthjustice represents the Bay Mills Indian Community and others challenging the Line 5 pipeline.
The suit comes to the Supreme Court after Michigan Gov. Gretchen Whitmer, a Democrat, had ordered the pipeline to be shut down beneath the Straits of Mackinac over concerns the pipeline was at risk of spilling oil into the Great Lakes.
Michigan Attorney General Dana Nessel, another Democrat, initially defended Whitmer’s order in state court in 2019.
Enbridge sought to remove the case to federal court after the case had already been fully briefed and argued before the state court, and nearly two years after it was first filed, said Chizewer.
The energy company was able to convince a federal judge to transfer the case. Then in 2024, the 6th U.S. Circuit Court of Appeals overruled the decision, prompting Enbridge to petition the Supreme Court to intervene.
In the meantime, the case has remained in limbo for years.
“The 30-day rule is there for a reason. It creates a sense of norms and consistency that parties can rely on in pursuing their cases,” Chizewer said. “So it does matter, and it should be taken seriously.”
Chizewer said that Congress does sometimes give exceptions to deadlines it has spelled out, but it didn’t do so in this instance.
However, Enbridge’s backers also see the case as a way to get the court to address when litigation should land before a federal court.
“Our brief makes the point that there should be a bias in the law for federal courts to have supersedence over federal questions, especially involving treaty commitments,” Morgan said.
Enbridge and the Canadian government have argued that a 1977 pipeline transit treaty between the United States and Canada explicitly prevents state and local officials from stopping the flow of hydrocarbons through protected pipelines.
Canada’s claims, backed by the United States and Enbridge, provide even stronger backing for moving the case out of state court, said Morgan.
“The idea that state governments can undermine the foreign affairs powers of the government, just because a nongovernmental litigant slips past a time bar,” he said. “That seems obviously wrong.”
Chizewer called that argument a distraction.
“The case belongs in state court because it involves state common law issues of public trust and public nuisance doctrine, and those are best fleshed out by state courts,” she said. “We have this system of federalism for a reason.”
