The Supreme Court will hear arguments on Tuesday in a case brought by the city of Baltimore against more than a dozen major oil and gas companies including BP, ExxonMobil and Shell. The city government argues that the fossil fuel giants must pay for the costs of climate change because they knew that their products cause potentially catastrophic global warming.
The Baltimore case is one of more than 20 similar suits brought by cities, states and counties in recent years. The cases make a variety of arguments about why fossil fuel companies bear responsibility for the costs of climate change, including that companies misled the public about the threat burning oil and gas poses to the climate. The Supreme Court is considering a narrow jurisdictional question: the Baltimore case was filed in state court, but fossil fuel companies contend that such cases should be tried in federal court.
“These cases have the potential to be quite powerful if they finally see their day in court,” says Karen Sokol, a law professor at Loyola University of New Orleans who has written extensively about climate liability cases. Sokol says state courts have a long history of handling cases about consumer protection, including lawsuits involving alleged corporate misinformation campaigns. If the Supreme Court decides in Baltimore’s favor, it would likely pave the way for cases against oil and gas companies to proceed in state courts across the country.
But the fossil fuel industry argues that federal courts are the most appropriate legal venue for such cases. “The issues here are inherently federal,” says Phil Goldberg, an attorney with the firm Shook, Hardy and Bacon in Washington, D.C. who represents the National Association of Manufacturers. The association filed a brief in support of oil and gas companies in the Baltimore case.
“This isn’t something the energy companies created. This is a byproduct of modern society,” Goldberg says. “All the companies are doing is engaging in a lawful business endeavor. And what that is is selling us the energy we need to drive our cars, turn on our lights, heat and cool our homes. And doing that is not a liability-causing event.”
Sokol says she believes the fossil fuel industry is trying to avoid state court cases that could expose how companies misled the public about the dangers of burning oil and gas.
“They’re basically fighting to keep this out [of] state court because they’re desperate to keep the social license that they’ve cultivated with this disinformation campaign,” she says of the fossil fuel industry. “It has never been held to account in this way in this country. It has wielded such economic and political might, it’s never had to face a threat quite like this.”
A city underwater
The lawsuits brought by states, cities and counties describe the widespread damage climate change is already causing across the country. Baltimore’s 2018 lawsuit paints a picture of a city overwhelmed by global warming. Court filings describe the “cascading social and economic impacts” of climate change in Baltimore, including dramatic increases in flood damage from both rain and sea level rise, increasingly deadly heat waves and massive infrastructure failures exacerbated by extreme weather.
As in many cities, some neighborhoods in Baltimore are heat islands where the temperature is significantly warmer than the surrounding area. In other parts of the city, climate-driven extreme rain routinely turns roads into rivers. Meanwhile, the port city’s century-old sewer and stormwater systems are unable to handle both sea level rise and more rain.
“Our stormwater systems are not adequate because they didn’t take into account climate change impacts,” says Lisa McNeilly, the director of Baltimore’s Office of Sustainability. The city’s sewer and stormwater pipes were laid in the early 20th century and, at the time, were state-of-the-art. But the pipes were not designed to handle sea level rise and extreme rain caused by climate change. When a lot of rain falls in a short period of time, raw sewage can flow into city waterways or back up into homes.
McNeilly says the city government is working as quickly as it can to adapt to more water, but the scale of the work is enormous and the effects of climate change are already abundantly clear.
One example, McNeilly says, is a thunderstorm that hit the city in the summer of 2019. “In one hour, somewhere between 5 and 7 inches fell over a small portion of downtown and some communities east of downtown,” she says. “We very quickly had 7 feet of water in these downtown areas.”
The thunderstorm happened to hit the city at the same time as a high tide. Sea level rise means higher tides, which means more encroachment of water from the harbor into stormwater pipes that are already overwhelmed by extreme rain. Sea levels are rising more quickly than the global average along much of the U.S. East Coast.
The Baltimore city government estimates that the portion of downtown that regularly floods will increase by nearly 150% in the next thirty years. “It’s just mind-numbing,” says Bruna Attila, the floodplain manager for the city’s Office of Sustainability. “It’s overwhelming to think about that.”
While city officials declined to comment on the details of the case pending in the Supreme Court, it is clear that the cost of adapting to the new climate far exceeds what the city can afford. Baltimore is not a rich city, and finding money to upgrade aging infrastructure is already a struggle. Global warming is imposing additional costs by accelerating the damage.
In recent years, sinkholes have opened under multiple city streets — likely due to a combination of failing pipes and large amounts of precipitation. In 2014, a line of parked cars crashed onto train tracks in the middle of the city after a retaining wall failed.
Repairing such damage could cost tens of millions of dollars, on top of the hundreds of millions of dollars required to routinely upgrade drainage and sewer pipes
Meanwhile, the city’s court filings point out that each summer brings longer and more severe heat waves which increase the risk of heat stroke and asthma-related hospital visits, and which require the city to upgrade housing, provide cooling centers and redevelop neighborhoods that have turned into dangerous heat islands.
“These companies must be held accountable. Climate change is a reality,” said Andre Davis, the then-Solicitor of Baltimore, at a press conference announcing the lawsuit in 2018. “The companies knew of the harm decades ago. If it had been disclosed, the problem of climate change could have been mitigated significantly. That’s our claim.”
The future of climate liability cases
None of Baltimore’s specific claims about the effects of climate change, or the responsibility of fossil fuel companies, will not come up on Tuesday when the case came before the Supreme Court. The court is only considering the narrow question of whether the case should be allowed to proceed in state court.
The companies, which include some of the largest oil and gas companies in the world, are fighting to keep the case in federal court. They argue that reducing greenhouse gas emissions and adapting to global warming are nationwide challenges that should be handled at the national level, ideally outside the courts.
“This has to be done in a thoughtful, centralized way where we focus on innovation and collaboration and not this litigation distraction,” says Goldberg, the attorney representing the National Association of Manufacturers.
In their legal arguments, the fossil fuel companies appear to be leaning heavily on the decision in a previous case decided by the Supreme Court in 2011. That case, brought by the state of Connecticut against an electricity company, alleged that the company was liable for releasing greenhouse gas emissions that cause climate change. The Supreme Court’s unanimous decision was that the company couldn’t be sued for its emissions under federal law.
“It was part of the first wave of climate cases that were pursuing liability [claims] against various parts of the industry — whether it’s energy manufacturers, utilities, those who bring us the energy that we all use and need every day — and make them liable for climate change,” says Goldberg. Those cases, brought in federal court, were unsuccessful. “We’re hopeful that the court will look at this the exact same way it did the previous cases.”
But Karen Sokol of Loyola University New Orleans, who has spent much of her career studying climate liability cases, says the new wave of climate liability cases is different. In the last decade, investigative reporting has revealed the extent to which companies knew about the connection between climate change and burning fossil fuels.
Climate science has also matured. It’s now possible to detect the effects of global warming in individual weather events, including extreme rain storms, hurricanes, droughts, heat waves and wildfires. The connection between burning fossil fuels and specific damage from extreme weather has never been more verifiable.
Lastly, Sokol says, the new wave of lawsuits have a completely new set of allegations. The first wave of cases, which included the Connecticut case, alleged that companies were liable for greenhouse emissions. The new wave of lawsuits allege deceptive marketing practices by oil and gas companies that billed their products as safe. “That’s a very, very different claim,” Sokol says.
The Supreme Court will announce its decision later this year on the narrow question of whether the Baltimore case should be considered in state or federal court. If the justices decide in favor of the companies and the case proceeds in federal court, it’s possible that the lawsuit will be eventually dismissed without a trial.
However, if the justices decide in favor of Baltimore, it is likely that the case will proceed in Maryland state court, which could require the companies in the case to turn over vast troves of documents about their businesses and marketing practices over the decades.