Published on August 5th, 2019 | by Steve Hanley0
Little Rhody Hits The Climate Change Litigation Big Time
August 5th, 2019 by Steve Hanley
Rhode Island — my home state — is the butt of many jokes because of its small size. The King Ranch in Texas is larger than the whole state. Rhode Islanders are a fairly insular group who rather enjoy making fun of themselves. One popular saying heard around the Biggest Little State In The Union is that when venturing across state lines to Massachusetts or Connecticut, it’s best to pack a lunch in case the hungries catch up with you before you can return safely to the confines of The Ocean State.
A year ago, then-Attorney General Peter Kilmartin sued Shell, Chevron, and 21 other oil and gas companies in state court, alleging their actions have caused the state to spend money to repair roads and bridges damaged by Super Storm Sandy in 2012, as well as from excessive flooding that struck the state in 2010.
The state claims it has a right to protect the welfare of its citizens by requiring some of the world’s largest oil and gas companies to pay for the costs of climate change, including rising sea levels and more frequent, more powerful coastal storms. Rhode Island is not called the Ocean State for nothing. Narragansett Bay comprises 20% of its total area and it has miles of ocean beaches along its southern border.
Shell had the state suit removed to federal court in July of last year, claiming the district court had federal question jurisdiction because Rhode Island’s claims should be governed by federal common law since they “implicate uniquely federal interests” such as nationwide economic development, international relations, and national security.
According to Climate Case Chart.com, Shell also contended the case raises a federal question and that federal laws, including the Clean Air Act, completely preempt Rhode Island’s claims. In addition, Shell said the district court had original jurisdiction under the Outer Continental Shelf Lands Act, the federal officer removal statute, the federal enclave doctrine, and the bankruptcy removal statute.
Invoking the Clean Air Act is bizarre because the fossil fuel industry has spent millions and millions of dollars to dismantle that legislation. Their argument seems to fall into the category of “Heads we win, tails you lose.”
Shell and the other defendants would prefer to have the matter decided in federal court where they expect their friends in high places — not the least of whom are the 5 ultra conservative members of the US Supreme Court who have all been suckled on Koch Brothers petrodollars — will protect them from having to pay for the damage they have done by pumping trillions of tons of carbon dioxide into the atmosphere over the past century.
The State of Rhode Island filed a motion to remand the case to state court a year ago. On July 23, federal judge William E. Smith ruled in the state’s favor and sent the case back to the state court level. According to the Providence Journal, Smith ruled, “Because there is no federal jurisdiction under the various statutes and doctrines adverted to by Defendants, the Court grants the State’s motion to remand.”
But the judge had more to say on the subject. “Climate change is expensive and the State wants help paying for it. Specifically from Defendants in this case, who together have extracted, advertised, and sold a substantial percentage of the fossil fuels burned globally since the 1960s.” Two similar cases are now pending in state courts in California and Maryland after federal judges refused requests to transfer them to federal court.
Smith went on to say, “Defendants understood the consequences of their activity decades ago, when transitioning from fossil fuels to renewable sources of energy would have saved a world of trouble. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes — however existentially necessary — that would in any way interfere with their multibillion-dollar profits.” Sounds like the judge has a pretty good grasp of the hanky-panky practiced by the oil and gas industry for the past 4 decades or more.
“Big oil and gas producers are desperate to stay out of state courts where tobacco lost and and opioid manufacturers are on the ropes,” Richard Wiles, executive director of the Center for Climate Integrity, said in a statement. “But now a third federal district court has ruled that state courts are where climate liability cases belong.”
The ruling got a strong endorsement from Senator Sheldon Whitehouse, a staunch supporter of environmental issues in Congress.
A federal judge in Rhode Island just wrote a really interesting decision about climate change.
Pretty strong stuff from a Republican-appointed, fact-based federal judge. pic.twitter.com/wLLUU7NFRS
— Sheldon Whitehouse (@SenWhitehouse) August 2, 2019
Anne Carlson, co-director of the Emmett Center on Climate Change and the Environment at UCLA, said it is becoming more likely that oil and gas companies will be forced to defend their actions in court. “As the victories for cities, counties and the State keep rolling in, one of these days oil company executives will likely face questioning from the plaintiffs’ lawyers. They’ll have to testify about what they knew about the realities of climate change, when they knew it, what they did to cover up that knowledge, and what they did to protect their own companies from the effects of climate change while funding a campaign to persuade the public that climate change wasn’t happening.”
Predictably, fossil fuel interests were not pleased with this latest court ruling. The National Association of Manufacturers criticized the decision, saying that responding to climate change is not an issue of liability. “If the state really wants to do something about climate change, it should work with manufacturers on energy innovations, not target them for baseless litigation,” said Phil Goldberg, special counsel with NAM.
Sure, Phil. After decades of lies and deception — not to mention deliberate character assassination of climate scientists like Michael E. Mann and James Hansen — we should all just sit around a table, sip Mint Juleps, and make nice with each other? In what alternate universe do you reside, sir?
No doubt this litigation will drag on for years, if not decades, as the oil and gas companies try every trick in the book to wriggle off the hook they fashioned for themselves while continuing to realize billions in profits from their death-dealing practices.
The courts can’t do the heavy lifting alone on this. At some point, the legislative and executive branches will need to do what they are supposed to do, which is govern. Most Republican members of Congress have forgotten how to do that, and the current executive feels he can ignore the needs of two-thirds of the citizens of the United States with impunity. He and people like Mitch McConnell are far more interested in winning personal victories than looking out for the best interests of all Americans.
The companies have unlimited funds and can hire flotillas of lawyers to do their bidding. This is but one small victory in what will be a protracted war but it is a signal that things are changing. The oil and gas industry will not be able to shove their poisons down our throats forever, although they will certainly try to do precisely that.
You go, Little Rhody. Keep fighting the good fight. You could become the champion for climate activists everywhere. Being small doesn’t mean you can’t be feisty and chart a course for others to follow.
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