In an ironic twist, the U.S. Supreme Court on Monday ordered the U.S. Department of Justice to weigh in on whether climate lawsuits should be heard in federal or state court, putting the Biden administration in a difficult spot.
The news follows the expected announcement of whether SCOTUS will take up this key jurisdictional question as Energy In Depth noted last week.
SCOTUS’ directing the solicitor general to file briefs “expressing the views of the United States” on the matter comes as the Court considers whether it will take up a petition to review a Tenth Circuit ruling that sent the City of Boulder and two other Colorado municipalities’ case back to state court.
While a procedural question, the possibility of SCOTUS taking up the matter could have huge consequences for the plaintiffs, who have sought to have the cases heard in state court, believing it is the more favorable venue. As Politico reported:
“Although the immediate issue is jurisdictional, the outcome could determine whether these tort cases are moved to federal courts, where they are likely to be dismissed, or state courts, where they may be more likely to succeed.”
The directive for DOJ to get involved in this issue is a new twist in the climate litigation campaign and puts the Biden administration in the tough spot of actually stating whether or not it supports these cases.
In 2020, Biden’s campaign pledged to “strategically support” these lawsuits. Legal scholars at the time anticipated, at minimum, that meant Biden’s DOJ would “file amicus briefs on the plaintiffs’ side, lending reinforcement to their arguments,” as reported by Bloomberg Law at the time.
However, DOJ has yet to take any such action and has been conspicuously silent ever since Biden assumed office. Earlier this year, E&E News reported on the administration’s passive stance during his first year in office, noting that the department’s refusal to engage has caused major tension with litigation supporters:
“…as Biden marks one year in office tomorrow, Attorney General Merrick Garland has not — as of yet — waded into the legal battle, despite repeated entreaties from Senate Democrats and the chief lawyers in a half-dozen blue states that are pursuing claims against the oil and gas industry.”
Supporters of climate litigation are annoyed with the president’s lack of actual involvement in these cases:
“‘I await any sign that is actually happening,’ Rhode Island Sen. Sheldon Whitehouse told E&E News of DOJ intervention.
… ‘The president pledged that they would “strategically support” the cases, and they have failed to do that,’ said Richard Wiles, president of the Center for Climate Integrity. ‘And that’s significant. The Department of Justice is an important voice on the legal landscape, and its absence is conspicuous.’”
Ironically, it’s back in Colorado where elected officials and others have been happy to back away from the Boulder lawsuit. Governor Jared Polis and Attorney General Phil Weiser – both Democrats – have declined to endorse the case, as has Conservation Colorado, one of the state’s biggest environmental groups, while the Denver Post editorial board has written up in opposition.
Bottom Line: SCOTUS is now turning to the Biden administration to weigh in on the issue that it has avoided for nearly two years, despite Biden promising on the campaign trail to “strategically support” these lawsuits, to the chagrin of litigation supporters.
The key question now: will Biden’s DOJ finally break its silence in support of climate litigation or continue to leave the plaintiffs dangling in the wind? With gas prices on the rise again, it’s going to put the administration in a difficult position.
Notably, according to POLITICO, “The government’s briefs can persuade the justices on whether or not to hear a case but are not determinative” (emphasis added). The court’s call for a brief from DOJ likely delays any potential decision on whether the justices agree to take up this jurisdictional question until early 2023.
