with Alexandra Ellerbeck

The Supreme Court will review a key aspect of a big case in which Baltimore is suing Big Oil over damages from climate change.

The question the high court plans to consider next year is a narrow procedural one. But its answer could have broad implications for a suite of other suits from local governments from Rhode Island to California aiming to hold fossil fuel companies accountable for global warming.

The court’s decision to review the case, announced Friday, is a win for oil companies hoping to stop the lawsuits looking for millions, if not billions, in damages for floods, fires and other climate change-fueled disasters.

The case also comes as President Trump and congressional Republicans prepare to solidify the court’s conservative majority with the nomination of Amy Coney Barrett to fill the seat of the late liberal icon Ruth Bader Ginsburg. 

Should the Supreme Court rule in favor of the oil companies, it may make it harder for cities and states to secure victory in the climate cases.

Over the past several years, more than a dozen states, counties and cities have scrambled to sue oil companies over the damages they say their products caused in the form of longer droughts, stronger storms and fiercer wildfires.

Last month alone, Connecticut, Delaware, Charleston, S.C. and Hoboken, N.J. have made a slew of different claims in court with the same broad theme. They allege oil companies misled the public about the dangers posed by rising temperatures — and that taxpayers are now paying the price for it by having to erect higher sea walls and prepare for other effects of climate change.

In response, oil companies have tried to kick the cases out of state court and have them heard instead in the federal judiciary, where precedent indicates they will very likely prevail. Baltimore and other local governments want to keep the cases local, where they think they have a better shot at victory.

Next year, the Supreme Court will consider how much leeway appeals courts get in deciding the best venue for the climate lawsuits from states and cities. 

The court, however, will not be considering broader questions about the science of climate change and the government’s role in stopping it.

“It’s certainly not your garden variety climate change case, in the sense that the court is certainly not going to be dealing with questions about, ‘Is climate change real?’” said Sean Hecht, a law professor at the University of California at Los Angeles who has aided several California counties in a climate lawsuit.

Still, the oil industry cheered the Supreme Court’s decision to hear the case, arguing that an issue of such national significance as global warming is a matter for the federal government, not states.

“This ongoing, coordinated campaign to wage meritless lawsuits against companies providing affordable, reliable and cleaner energy is nothing more than a distraction from these important issues and enormous waste of taxpayer resources,” said Paul G. Afonso, the chief legal officer of the American Petroleum Institute, a major oil lobbying group in Washington.

Baltimore said it is confident it will win the case on what it calls “a narrow technical issue” of what sort of information appellate courts can consider when deciding which jurisdiction — state or federal — the cases belong in.

“In public, defendants criticize our case as without merit. But in court, they do everything they can do to delay proceedings and avoid a public trial on the facts. Their days of having it both ways are ending,” said Dana P. Moore, acting solicitor for the city, which sued 26 defendants, including ExxonMobil, BP and Dutch Royal Shell, in 2018.

David Bookbinder, chief counsel of the Niskanen Center, a think tank, said he was “not surprised that they took the case.”

“It’s good that it’s a narrow issue,” said Bookbinder, who is part of a legal team representing three local governments in Colorado suing ExxonMobil and the Canadian oil firm Suncor Energy.

By the time the case is heard, Barrett could be on the Supreme Court. 

But the already tight schedule for filling the vacancy created after the death of Ginsburg last month has been muddied by the positive coronavirus tests of at least two Republicans — Mike Lee (Utah) and Thom Tillis (N.C.) — on the Senate Judiciary Committee.

There is one conservative justice who may not hear the case. Justice Samuel Alito recused himself from the decision to grant the oil companies’ petition to review the matter. 

Elevated by Trump to the U.S. Court of Appeals for the 7th Circuit in 2017, Barrett has a short record on the federal bench. But lawyers who have reviewed her writings and rulings say she will likely make it harder for blue states and green groups to win climate cases.

Trump’s nominee has a family connection to one of the oil companies being sued. Her father spent most of his own legal career working for Shell.

Power plays

California tells the Environmental Protection Agency it has the legal power to ban new gas-powered cars by 2035. 

The state asserted in an Oct. 1 letter to the Trump administration that it has the authority under the Clean Air Act to stop sales of automobiles with internal combustion engines after EPA chief Andrew Wheeler raised legal questions about the plan from Gov. Gavin Newsom (D).

“It is remarkable that you prioritized fabricating baseless mistruths about Governor Newsom’s bold climate directive rather than working for the health and welfare of Americans,” wrote Mary Nichols, head of the California Air Resources Board, and Jared Blumenfeld, the state's secretary for environmental protection, adding that Wheeler's original letter was “politically motivated.”

The EPA had said California will need the federal government's approval to proceed. Wheeler had also questioned the prudence of shifting more aggressively to electric vehicles given “California’s record of rolling blackouts.”

Five major environmental groups joined to support Democrats in the 2020 election.

The Sierra Club, the League of Conservation Voters, Environmental Defense Fund Action, the Natural Resources Defense Council Action Fund and the National Wildlife Federation Action Fund will be mobilizing a multimillion-dollar campaign to elect “environmental champions” in more than 30 House races and four Senate races, the Hill reports.

The effort, called Green Wave 2020, will mobilize more than 70 professional organizers to work in competitive elections across 15 states, an initiative that the groups involved say will influence not only 2020 but will also help develop long-term organizing infrastructure. In addition to congressional races, the initiative also seeks to boost Democratic presidential nominee Joe Biden in swing states.

A family that made its wealth from oil wants banks to drop fossil fuels.

Members of the Rockefeller family, which made its fortune from John D. Rockefeller's Standard Oil, have created a new initiative to pressure banks to divest from fossil fuels, Politico reports

Rockefeller family members Danny Growald, Valerie Rockefeller and Peter Gill Case co-chair the effort, called BankFWD, which is built on the premise that a new generation of younger investors will be more environmentally conscious.

“BankFWD’s co-chairs acknowledge that the amount of money held by their affluent friends, companies and philanthropies could withdraw from U.S. banks is outweighed by the investments the big banks generate from fossil fuel investments,” Politico writes. “Instead, they’re using the notion that well-heeled clients — who often get personal attention from bank executives — could steer their networks of friends away from banks that invest in fossil fuels.” 

Thermometer

A long-delayed Trump administration study outlines the threat of climate change for polar bears.

“After stalling for months, a top Trump official released a polar bear study by government scientists Friday that highlights the endangered animals’ vulnerability to climate change and the fact that proposed oil drilling in Alaska would probably encroach on their habitat, causing more stress,” our colleague Juliet Eilperin writes.

The U.S. Geological Survey Director James Reilly had taken the unusual step of delaying the polar bear study, despite its approval by independent researchers and top agency scientists. The U.S. Fish and Wildlife Service had been seeking the report for three months because the agency is legally require to have it to allow a drilling project on Alaska’s North Slope to go forward.

The study, which was obtained by The Post last month, finds that climate change threatens the “long-term persistence of polar bears” as the sea ice they depend on for hunting and establishing dens rapidly disappears.

The disappearing ice has driven more polar bears to establish dens on land, where they continue to face habitat threats from natural resource extraction, road building, and other human activities. More than one-third of the western U.S. Arctic’s maternal dens are on the coastal plain of the Arctic National Wildlife Refuge, where the Trump administration has approved leasing for oil and gas drilling.

Energy transitions

Linking solar powers to hydro could generate up to 40 percent of the world's power, according to a DOE study.

A new Department of Energy study published this week is the first look at the technical potential of constructing solar panels on the surface of hydro reservoirs. By feeding the power creating from the solar panels into the same hydropower station, “both energy resources might become cheaper, more efficient and more reliable,” E&E News reports.

The study, published in the journal Renewable Energy, found that if such a model were adopted on more than 379,000 hydro reservoirs around the globe, the resulting energy could generate anywhere from 16 percent to 40 percent of the world's 2018 electricity production, E&E News reports.

Oil check

Shale companies floundered, even as their CEOs made it big.

“The leaders of U.S. shale companies received some of the largest executive pay increases in corporate America, even as their shareholders lost billions of dollars,” the Wall Street Journal reports. “The median pay for chief executives of large U.S. oil and gas drillers rose for four straight years, hitting $13 million in 2019.”

Shale CEOs as a group received larger raises in 2019 than their peers in every industry besides health care and utilities, according to a Journal analysis of executive compensation data from Equilar Inc. While the industry had made tweaks to its formula for executive compensation after the Journal reported in 2016 that CEOs were being rewarded for pumping more whether or not it made more money, the current formulas still “bear little relationships to the companies' bottom line,” The Journal finds.

A comparison of 19 American frackers worth between $2 billion and $50 billion to U.S. companies of comparable size in other sectors found that the frackers “fell behind every major industry in their return on capital employed “ and experienced shares falling by a median of 41 percent over the past five years, “worse than companies of that size in every segment of the economy,” the Journal reports.