There are 12 federal Circuit Courts of Appeal in the United States. The 8th Circuit covers the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. In June of 2020, Minnesota sued the American Petroleum Institute, Exxon Mobil Corp, and Koch Industries in state court for what it called a decades-long campaign to deceive the public about climate change.
In its complaint, Minnesota claimed the companies and API “strategized to deceive the public” about climate science to protect their business interests and accused them of a “multi-pronged campaign of deception” conducted over the last 30 years. “The fraud, deceptive advertising, and other violations of Minnesota state law and common law that the lawsuit shows they perpetrated have harmed Minnesotans’ health and our state’s environment, infrastructure, and economy,” said Minnesota attorney General Keith Ellison, according to Reuters.
The defendants sought to remove the case to federal court, arguing that if they committed any violations, those violations breached federal law and federal law takes priority over state law according to the supremacy clause of the US constitution. Federal district court judge John Tunheim disagreed and ordered the case remanded to Minnesota state court. The defendants appealed that ruling to the 8th Circuit Court of Appeals.
On March 23, the court unanimously agreed with judge Tunheim’s remand order. The case will now be returned to the state court in Minnesota where it was filed nearly three years ago. Exxon, API, and Koch Industries have bought themselves three more years to operate their businesses as they see fit. Last year, the fossil fuel industry recorded higher profits than any business corporations in history, so whatever they paid their Gucci-shod lawyers to try to get the case transferred to federal court was repaid many times over.
The 8th Circuit said in its decision, “Minnesota is not the first state or local government to file this type of climate change litigation. Nor is this the first time that the Energy Companies … have made these jurisdictional arguments. But our sister circuits rejected them in each case. …. Today, we join them.” The same arguments have been struck down by five other Circuit Courts of Appeal.
A common expression in the law game is, “Justice delayed is justice denied.” Another one says, “Delay always works to the advantage of one of the litigants.” Both are true. In this case, the delay has denied justice to the people of Minnesota and greatly enriched the defendants. In a statement, Ellison said, “Imagine how much farther along we’d be in the transition to a low carbon economy if it weren’t for the defendants’ decades of deception and disinformation. Our state law claims are now headed back to state court where they belong, and where every U.S. Court of Appeals has sent them.”
What’s The Big Deal About Minnesota State Court?
Why are fossil fuel companies and their enablers so scared of state courts? To answer that question, you have to understand that the law is a game. There are rules, and those rules vary from court to court. One of the key pieces of any lawsuit is the so-called discovery process, which requires the parties to disclose information within their control that is relevant. State courts tend to permit broader discovery that federal courts do and you can easily understand why the fossil fuel industry doesn’t want to disclose all the internal reports and research that prove they have been lying to the public for decades.
But that’s not the whole reason, is it? Ultimately, any legal action in federal courts is subject to review by the US Supreme Court, which currently has six judges who rose to their exalted position thanks to being cultivated by the Federalist Society. Why is that relevant? Because the Federalist Society has its roots in a conservative movement that has been amply endowed for generations by Charles Koch, the paterfamilias of Koch Industries. (See Jane Meyers’ superb Dark Money for more on this topic.)
It is no coincidence that his father, Fred Koch, was one of the founding members of the John Birch Society. Fred invented a new process for cracking crude oil after graduating from MIT, but was sued by the major oil companies of the day. Unable to use his process in the US because of ongoing patent infringement litigation, he took his technology to Russia, where he built refineries for Josef Stalin. Later he did the same for Adolf Hitler. The respect for dictators runs deep in the Koch family.
It doesn’t take a Harvard Law Review genius to see that the fossil fuel industry has bought and paid for those six conservative judges and fully expects them to pull its chestnuts out of the fire in the event that any of the multiple plaintiffs succeed in proving they are responsible for causing the Earth to overheat and putting the lives of millions at risk while they were laughing all the way to the bank. There is no similar circuit breaker mechanism if the litigation stays in state courts.
A curious thing happened today. While writing this story, I went back to the Reuters coverage in 2020 when the Minnesota suit was first filed. Reuters contacted the API for their reaction to the suit at that time and was told the industry provided “affordable, reliable energy to U.S. consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false,” said API chief legal officer Paul Afonso.
Hmmmm…didn’t I just do a story yesterday about a research paper published in the Harvard Environmental Law Review that advocated for bringing criminal charges against Exxon and API? Why yes, in fact, I did. After that report was published, The Guardian reached out to API, who sent along this canned response: “The record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to US consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false.” Sound familiar? These people must have a dozen pre-scripted responses ready to be spit out whenever the need arises.
It’s Not The Crime, It’s The Cover-Up
The stock response of the fossil fuel industry and its enablers is that coal, oil, and gas have fueled the Industrial Revolution and raised the standard of living of billions of people, and there’s no denying that’s true. But that is just one part of the story. The other part is the way the industry has kept what it knows from its own scientists buried under a mountain of obfuscation, denials, misinformation, PR hype, and lies.
If the general public was privy to that knowledge, the pressure to find alternatives to burning fossil fuels would have been much greater. Had we started in the 1990s when James Hansen first testified before Congress about global warming, the price of mitigation would have been modest. By covering up the truth, these companies have put the world in a position where it needs to spend ungodly amounts of money just to keep the human race from extinction. Shouldn’t these companies pay for the harm they caused as a result of their failure to warn us about what their own scientists knew?
None of these so-called climate suits has gone to trial yet and it may be many years before they do. In the meantime, these companies are planning to add billions more tons of greenhouse gases to the atmosphere and further endangering every living soul because there is no place for ethics in business and they can continue doing what they have always done until someone makes them stop. Until then, they are pulling every trick in the book to stop the clock so all those lovely profits continue pouring into their corporate coffers.
In the final analysis, these companies have no sense of decency. That phrase was enough to bring down Joseph McCarthy on June 9, 1954, but today the absence of decency is almost a badge of honor, something to be celebrated and flaunted while daring anyone to do anything about it. The end of the fossil fuel industry cannot come soon enough for our overheated planet.
The odds are it won’t happen in time, as these climate suits grind their way forward with glacial slowness. By the time they reach a conclusion, there may be no remedy for the harm the industry has done by throwing a blanket of secrecy over what it knew for over 50 years. There is some question in legal circles whether any court can fashion a remedy for the harm the fossil fuel industry has done not only to Minnesota, but also to our entire planet.
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