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By Lawrence Hurley
WASHINGTON, Jan 19 (Reuters) - The U.S. Supreme Court on
Tuesday grappled with a dispute that one justice called a "close
call" over a lawsuit filed by the city of Baltimore against
energy companies seeking monetary damages due to the impact of
global climate change.
The justices heard arguments by teleconference on a legal
issue that will help determine whether the lawsuit and others
like it will be heard in a state court, as the city would
prefer, or in a federal court, which corporate defendants
generally view as a more favorable venue. The arguments did not
address the merits of Baltimore's claims.
The Maryland city targeted 21 U.S. and foreign energy
companies that extract, produce, distribute or sell fossil fuels
including BP PLC, Chevron Corp, Exxon Mobil Corp
and Royal Dutch Shell PLC.
Some of the eight justices taking part in the case appeared
skeptical toward Baltimore's lawyers.
The court has a 6-3 conservative majority but conservative
Justice Samuel Alito did not participate, likely because he owns
stock in two oil companies involved in the litigation. If the
court is divided 4-4 in its eventual ruling - due by the end of
June - an earlier decision in Baltimore's favor by the Richmond,
Virginia-based 4th U.S. Circuit Court of Appeals would stand.
"I think this is a close call," said conservative Justice
Brett Kavanaugh.
But Kavanaugh pointed out among other things that
Baltimore's arguments conflicted with a 1996 ruling written by
the late liberal Justice Ruth Bader Ginsburg.
"It's never good to be on the wrong side of Justice Ginsburg
opinions," Kavanaugh said of his former colleague who died in
September.
The outcome may affect around a dozen similar lawsuits by
U.S. states, cities and counties.
Baltimore and the other jurisdictions are seeking damages
under state law for the harms they said they have sustained due
to climate change, which they attribute in part to the
companies' role in producing fossil fuels that produce carbon
dioxide and other greenhouse gases. The claims involve oil
production and marketing, not the harmful emissions themselves.
The plaintiffs, for instance, have said they have had to
spend more on infrastructure such as flood-control measures to
combat sea-level rise caused by a warming climate.
The legal question concerns a provision of U.S. law that
puts limits on appeals courts reviewing decisions by federal
district court judges to remand a case to state court. The
companies have said that in this instance the 4th Circuit had
broad scope to review a district court's decision because of a
provision that allows appeals of such rulings when a case
directly concerns federal officials or government entities.
Liberal Justice Stephen Breyer noted that the applicable law
was enacted to prevent delays in resolving cases, and that
giving the energy companies a broad right to appeal could do the
opposite.
"That means added time, added delay," Breyer said.
The energy companies have argued that oil production is an
inherently federal issue, meaning the case should be heard in
federal court. Greenhouse gas emissions that cross state and
international lines are likewise an issue that cannot be
addressed under state laws, the companies asserted.
Conservative Justice Amy Coney Barrett did not heed calls
from some activists that she not participate because her father
formerly worked as a lawyer for a Shell subsidiary.
With Congress divided over climate change, the lawsuits are
the latest effort to force action via litigation rather than
legislation.
With Democrats now in control of Congress and Democratic
President-elect Joe Biden due to take office on Wednesday, the
role of big oil in climate change may draw renewed attention.
In a separate case, a federal appeals court on Tuesday
tossed out a watered-down replacement by President Donald
Trump's administration of a regulation issued under his
predecessor Barack Obama aimed at curbing greenhouse gas
emissions from coal-fired power plants.
(Reporting by Lawrence Hurley; Editing by Will Dunham)
