The environment has had a few successes in the courts (Enjoy them now – they won’t last)

  • Published on May 15th, 2020

It’s nice to hear that groups protecting vulnerable populations during the coronavirus pandemic could potentially build on legal tactics employed in climate litigation, and (conversely) for those bringing climate lawsuits to learn from coronavirus litigation.

By Climate Denier Roundup

Last week, Dawn Reeves at InsideEPA reported that ExxonMobil’s lawyers attempted to convince the 10th Circuit Court of Appeals to overturn a district court ruling and move a case brought by the City of Boulder to a federal court, instead of the Colorado state court where it was initially filed. Exxon’s approach mirrors defendants’ efforts in other recent climate suits to remove cases to federal courts, where they feel they’ll get a more sympathetic judge. This tactic has failed in recent cases brought by Baltimore, California and Rhode Island.

It’s impossible to predict how a court may rule, but an attorney who supports the litigation efforts told Reeves that they are “very encouraged” by the proceedings, and that the court “did appear skeptical” of the ExxonMobil lawyer’s arguments for moving the Boulder suit to a federal court, which is nice to hear.

This week, Reeves covered a new draft paper by the University of Connecticut’s Sara Bronin, who identifies these areas of overlap and things to watch.

Bronin highlights three key types of lawsuits those interested in climate litigation should keep an eye on. The first are “failure to protect” lawsuits, which like the Juliana case, which have so far failed to hold governments responsible for failing to protect the public from a known threat. In the context of the coronavirus pandemic, however, the “failure to protect” theory has been used to demand the release of inmates who are elderly, close to release, or at a high risk for infection on the grounds that keeping those inmates incarcerated would put them “at risk of certain, but avoidable, bodily harm.”

While Bronin acknowledges that there are “obviously differences” between those COVID-19 cases and Juliana, at their core they hinge on the government’s failure to prevent a foreseeable and preventable harm.

The second overlap shared by coronavirus and climate litigation is the presence of actors spreading misinformation about the issue, which in turn causes the public to “act in ways injurious to themselves.” There’s already a lawsuit filed against Fox News and others who spread COVID-19 misinformation, which is of course similar to the #ExxonKnew lawsuits seeking to hold the fossil fuel industry accountable for climate misinformation. Though it sounds idyllic, albeit possibly a bit authoritarian, Bronin hopes “judicial actions may restore factual media coverage and thus combat the denialism that persistently plagues the climate debate.”

Unfortunately, this is where reality comes crashing in. The third type of lawsuit Bronin highlights are “takings” suits, in which businesses sue the government for taking property without compensation, or in this case, businesses sue over the lockdown orders that deprive them of revenue.

Bronin doesn’t expect these cases to be successful: the government isn’t required to compensate businesses for losses incurred by lawful policy, especially policy enacted in a situation as fast-moving, serious, and deadly as a pandemic. If these suits are successful, however, it could set a precedent that would allow the fossil fuel industry to sue over anything that damages its profits, essentially forcing the public to pay the industry to stop polluting us to death.

And as backwards as such a ruling might sound now, there’s no telling what the court system will look like by that time. As David Hasemyer at InsideClimate News wrote yesterday, President Trump has appointed 51 appellate judges so far, “more than any president in 40 years – accounting for more than a quarter of all sitting appellate judges.”

The majority of those selected by Trump have been highly partisan and frequently unqualified in every way except for their loyalty to Trump and Senator Mitch McConnell, whose main objective in recent years has been packing the courts with these picks. And they’ve been relatively successful. Of the 10 Trump appointees on the Ninth circuit, which covers California and eight other western states, eight had zero prior experience as a judge. One had previously worked on Shell’s behalf to defend it from climate litigation.

Another was described by his peers interviewed by the American Bar Association as being “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” while also having “an ‘entitlement’ temperament,” and lacking in both “humility” and “an open mind.” Most importantly, he “does not always have a commitment to being candid and truthful.”

A lazy, arrogant, entitled, ignorant close-minded liar. What more could Trump want in a judge?

(Crossposted with DailyKos. Photo by Delta Mike on Flickr.)

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