Justices to Decide If Climate Test Cases Move Forward

and on Bloomberg dot com slash podcasts. Climate nuisance litigation has been building for years, and now the Supreme Court is set to decide whether green light proceedings in state courts for several cases in which state and local government officials are trying to hold oil companies accountable for their role in climate change. Industry lawyers have filed three emergency requests that asked the Jostices to stall cases from Rhode Island, Baltimore,

and Colorado. Joining me is Brandon Barnes, Bloomberg Intelligence Senior analyst for Energy Litigation, explain how state and local governments have been using public nuisance laws against energy companies. Public nuisance is sort of a catch all category for the state local governments to be able to try and enforce. Their idea is that somebody should pay to improve the

infrastructure that is being exposed to climate change issues. Let's say it's increased erosion from more strength and storms as a result of climate change. And the way I think about it really is that the courts, through public nuisance as a doctrine, are sort of the funnel through which a lot of these entities are putting their frustrations with

the federal government for acting on climate change regulation. And it's a very broad doctrine that's not as well defined, and so you can try to kind of push some of these issues to get your results. Industry lawyers have filed three emergency request asking the Supreme Court to stall cases. Why the rush to the Supreme Court, The real hubbub

right now is basically procedural. You know, they're going to Supreme Court right now to try and really preserve judicial resources and sort of economy to stop allowing there to be so many proceedings on the same issue. How likely is it that the Supreme Court will step in here?

It's a high bar. It's a really high bar to get the court to even review this kind of issue because district court orders on remand typically aren't revealable on appeal unless you fit into a really kind of small exception that's difficult to argue here, which is that there's a federal officer involved, and so they're really kind of trying to twist to get into the court to have them stop this action from continuing in two jurisdictions at

the same time. In each one of these cases, they're essentially asking the Supreme Court to the side whether state court proceedings should be held, stayed, or held in the bands, while the Circuit court on the federal level the sides their federal state court should hear these cases. And that

by itself sounds pretty minimal procedural issue. But the real interesting thing is that underpinning that decisions of the Sucreme Court is a decision of what type of claim these climate change public nuisance cases actually are, and that is determinative of whether these cases can move forward past procedural stages where they've been grounded in federal common law. If the Supreme Court does not step in, what's the risk of these oil companies if they have to face state

court proceedings and discovery there. The risk is in the billions. It's really unquantifiable if we're talking about a worst case scenario, because you know, the ask is you need to tore up all of our sea walls, you need to discourage some of your profits from you know, the fact that you made a product that you sold to us that wasn't helpful to the climate, and then you told us

it was going to be. The risk is that they go to state court and the state court applies state common law nuisance claims, where you don't know what the president looks like and you don't know which way a state court could go where federal common law nuisance has already been pretty clearly stated out by Supreme Court and other certain courts. So you're going from the certainty of potentially a win and it's a vast unknown if you

go to the state courts. What about what might be found out in discovery and just the extent that discovery

could take. Yeah, I think discover is probably the real risk in my mind as this played out over years, is this is part of potentially a longer term strategy where if the plaintiffs being you know, the states, the counties and some of the interest groups that are involved get a look at, you know, the discovery materials from some of the companies, they're gonna probably try to go on a fishing atidition to try and see what else

was there. You know, when certain R and D departments were deciding what happened, what risks were, etcetera, and how they were kind of calculating their own internal risks related to climate change. And we've seen that play out in UM in the X and case in New York. It is a different case, but there's been i mean, a two year protracted battle over discovery and that I think could yield you know, major other claims if if they

can find that evidence. But they would never have that unless they got to this stage in these climate case. Five circuit courts have some climate liability cases before them, so this hasn't re each the circuit court stage yet. The circuit courts haven't decided not not on this, not on this swath of cases. This is sort of all in the preliminary stages of whether this should be litigated

in federal court or in state court. The question that's really in front of the circuit courts right now, and that's the question that's going up to the Supreme Court because you know, there's really favorable precedent in the federal circuit and federal courts related federal common law for the companies and it's a vast unknown if you go to the state courts, which obviously, if you're a company, you do not want to deal in uncertainty in these kind

of with dis in front of you. Thanks Brandon, that's Brandon Barnes, Bloomberg Intelligence, Senior Analyst for Energy Litigation. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg