Forum shopping. That’s what lawyers do when they try to get cases in front of judges they think will be sympathetic to their cause. Several state and city governments have sued major oil companies in state courts, seeking to hold them responsible for the damage caused by extracting and burning fossil fuels. In every instance, the $1,000 an hour legal eagles hired by the companies have tried to remove those cases from the state courts and transfer them to federal courts, which they think will be more inclined to rule in their favor.
This week, the US Court of Appeals for the Fourth Circuit, which handles cases from North Carolina, South Carolina, Virginia, West Virginia, and Maryland, ruled that in the case of Mayor and City Council of Baltimore v. BP et al, proceedings in a Maryland state court may proceed.
At the federal trial court level, the 4th District Court refused the companies’ request to remove the case to federal court. That decision was appealed to the 4th Circuit Court of Appeals, which refused to overrule the trial court. The oil companies have appealed 4th Circuit Court’s ruling to the US Supreme Court. The companies then asked the 4th Circuit Court to put all proceedings at the state court level on hold until the Supreme Court decides whether or not it will take up the case. The 4th Circuit Court of Appeals denied that request this week.
The practical effect of the 4th Circuit Court’s order is that the lawyers for the plaintiffs — the mayor and city council of Baltimore — may now more forward with what is known as the discovery phase of preparing for trial. Under the rules of procedure in all state and federal courts, the litigants are entitled to request any and all pertinent documents and to depose the witnesses who are expected to testify at trail.
The spirit of the rules of procedure is that if everyone knows the strength of everyone else’s case, the parties will be motivated to settle lawsuits amicably without taking valuable court time to litigate, a process that can take months in complex litigation. In practice, however, squadrons of attorneys have devoted their entire careers to bogging the process down in endless minutia, delaying the process ad infinitum.
Let’s say the city requests a certain document. The defendants claim it is irrelevant or somehow outside the scope of discovery. The plaintiffs then file a motion to compel production of that document. A judge rules the document must be produced. The defendants appeal that ruling. The appeal is denied. They then appeal to the state supreme court or take their complaint to federal court. Months, if not years, go by.
The process is interminable, expensive, and ultimately frustrating to the spirit of the rules of discovery, which are intended to narrow the issues that must be determined at trial. With thousands of documents potentially at issue in this case., it is easy to see the process dragging on for years upon years while the companies continue to bring their liquid death to market.
According to Legal Planet, a blog published by the Berkeley School of Law:
“It seems safe to assume that the oil companies do not want plaintiffs to be able to get into their old files, question their executives, and require the companies to answer written questions about their knowledge of climate change. Nor do they want to have to reveal what they have done to finance campaigns of disinformation to persuade the American public that climate change isn’t real or isn’t caused by humans. They also prefer to keep hidden what they have done to protect their own assets against the ravages of climate change.
“We have already seen documents that provide answers to some of these questions but much more damning information is likely to come out during the long discovery process. Worst of all for the oil companies may be the questioning of executives — under oath — by experienced trial lawyers who will ask them tough and uncomfortable questions about their knowledge and behavior. The process of discovery will be long and drawn out and oil companies will put up every obstacle imaginable in an attempt to avoid answering questions along the way. But the cases have reached a new stage that no other climate change nuisance case has. Things are about to get interesting.”
In an e-mail to CleanTechnica, Richard Wiles, executive director of the Center for Climate Integrity, says, “Discovery, which means learning the truth about Big Oil’s role in causing climate change and then lying about it, is the last thing the oil companies want. Going to trial for knowingly causing climate change and then lying about it would be a nightmare for Big Oil. This decision takes us one big step closer. Big Oil wants us to believe that we all caused climate change. Discovery will put an end to that myth, and reveal the companies’ decades of deception and lead role in causing the climate crisis.”
In other words, this is a small victory in what will prove to be a long and protracted battle. Don’t hold your breath, but a small crack has appeared in the monolithic wall of silence the fossil fuel companies have built around their activities. With luck, that crack will grow until their entire legal façade crumbles, leaving the companies on the hook for trillions of dollars worth of damages. For those who have invested in fossil fuel companies, this might be an excellent opportunity to grab your money and head for the exits before the entire house of cards collapses.