An old expression says the problem with politicians is that they won’t stay bought. Make no mistake; the members of the US Supreme Court are politicians. They are identified in law school as people who will do the bidding of their benefactors. They are shepherded through life’s troubled waters, awarded clerkships with the right judges, introduced to the right people, and guaranteed cushy jobs with the right law firms until it’s time to elevate them to the Supreme Court, where they are expected to render legal decisions that will benefit the business and personal interests of their supporters.
There is not a person on Earth who doesn’t know that Neil Gorsuch, Brett Kavanaugh, and Amy Barrett were promoted to the Supreme Court specifically to overrule Roe Vs. Wade, the fifty-year-old ruling that permitted women in America to control their own reproductive functions. Last year, the six reactionary judges — all of whom openly despise activist judges — delivered for their supporters big time, as Dick Cheney liked to say.
The Supreme Court & Fossil Fuel Money
What is not so widely known is that the money behind many of these ultra-conservative organizations is associated with fossil fuel companies such as Koch Industries. If you want to learn more about that topic, pick up a copy of Jane Mayers’ book Dark Money, which lays it all out, chapter and verse, for anyone who wants to know what is really happening in America, and who has their hands on the levers of power.
What do oil barons have to do with abortion? Nothing, but those with the cash have found that stirring up conservative religious factions helps divert attention from their own nefarious doings. All of the 6 current members of the conservative wing of the US Supreme Court owe their lifetime appointments to fossil fuel money. They have been carefully selected to be a bulwark against attacks on the coal, oil, and gas industries when the need arises.
And yet…the need has arisen. Multiple states, cities, and counties have sued the fossil fuel companies for poisoning the atmosphere with pollutants that are responsible for an overheating planet. They all knew precisely what they were doing and what the consequences would be, because they thought they had insulated themselves from liability for their actions by getting judges inserted in key parts of the legal system who would protect them.
They were wrong. On April 24, the Supreme Court rejected a petition by ExxonMobil and Suncor to hear their appeal of a decision by the 10th Circuit Court of Appeals in a case brought against them by the City of Boulder and Boulder County. The appeals court rejected the companies’ attempt to take that case out of state court and transfer it to federal court, according to a report by the Union of Concerned Scientists.
Why are fossil fuel companies so afraid of state courts? For one thing, the rules of discovery in state courts tend to be more liberal than in federal courts, which means the companies may be forced to disclose more information about the lies and distortions they have fed to the public for decades. The Supreme Court also rejected petitions from fossil fuel companies in dozens of other cases filed in state courts in Rhode Island, Maryland, California, Delaware, New Jersey, and Hawaii. So far, twenty appellate judges across six circuit courts, 13 federal district judges, and the US Department of Justice have all agreed these cases should be heard in state courts.
For another thing, they don’t own the supreme courts of those states the way they own the US Supreme Court. If they lose, their carefully devised plan to escape liability shaped over the course of several decades will be all for naught.
Dr. Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists, told The Guardian, “The supreme court’s decision today is a significant victory for climate justice and climate lawsuits filed across the United States and around the world. The communities involved in this case suffered unimaginable losses due, in large part, to the recklessness and greed of the fossil fuel industry, and now they are one step closer to having their day in court.”
She added, “ExxonMobil, Suncor, Chevron, Shell and other fossil fuel companies have known for decades that heat-trapping emissions from their operations and the use of their products drive climate change and its impacts, but they have continued to deceive the public and obstruct meaningful action. The decision sends a powerful message to fossil fuel companies — evading responsibility will not be tolerated.
“As we become more adept at identifying the specific contributions of individual companies to the climate crisis through attribution science, we are increasingly able to trace the lines of responsibility from the boardrooms of fossil fuel companies to the shattered homes and lives of those harmed by climate change.
“While no amount of money can compensate for the damage climate change has wrought, a victory in this case could provide some measure of justice and demonstrate the power of litigation as a tool for climate action.” Amen to that, Dr. Merner.
In March, the Biden administration urged the Supreme Court not to take up the appeal by Exxon and Suncor, because it said that no federal questions had been raised in the litigation. That marked a reversal of the position taken by the Trump administration when the Supreme Court last considered the issue.
Racketeers And Thugs
The sun is setting on fossil fuel companies. A group in Puerto Rico has filed suit under the RICO act, alleging they are nothing more than racketeers and gangsters. In its complaint, the state of Minnesota claimed the oil companies and the American Petroleum Institute “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.
One thing that is not clear is what remedy these various state courts will apply if the plaintiffs are successful. Courts are historically reluctant to hear cases where there is no clear standard for relief. Money damages don’t make a person whole who loses a leg or an eye in a car accident, and money damages won’t do all that much for the plaintiffs in these cases. They could bankrupt one or two companies, but then they just take a bankruptcy bath and keep doing what they have always done under a different name.
50 years ago, the federal courts tried to fashion a remedy for segregated schools and came up with a plan that was wildly unpopular with virtually everyone. It was a noble experiment that largely ended in failure and may have actually been one of the sparks that started the conservative revolution in America. It was certainly one of the keys to the backlash against so-called “activist judges” that is such a large part of conservative politics.
What exactly can a court do if the plaintiffs win one of these lawsuits? Hopefully one day we will find out.
Featured photo by David Dibert via Pexels
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