Climate Lawsuits Are Finally Headed to the Supreme Court

By Zoya Teirstein, Grist

04 October 20

ajor oil companies have played a significant role in heating up the planet for decades. Should they be required to pay for some of the expenses cities, counties, and states have incurred due to climate change? That question has been bouncing around the nation’s courts for some time. On Friday, the Supreme Court announced it finally intends to weigh in on the lawsuits — but that may not be a win for environmental groups looking to hold Big Oil accountable.

The highest court in the land isn’t ruling on the validity of the climate lawsuits themselves, though that could come later. For now, it’s taking up a procedural motion related to a lawsuit filed by the city of Baltimore, which sued oil and gas producers for their contributions to climate change in state court in 2018. Like other climate liability lawsuits, the city sought to pin the blame for damage caused by rising temperatures — heat, drought, rising sea levels, erosion, and other negative consequences of a rapidly changing climate — on oil companies they say have profited off of the crisis. Most of these complaints, which have been filed against a handful of the world’s biggest fossil fuel companies such as ExxonMobil, Shell, Chevron, BP, and ConocoPhillips, hinge on the finding that at least some those companies knew for decades about the role their products played in advancing climate change, and chose to cover up the extent of the problem in order to conduct business as usual.

Oil companies tried to get the Baltimore lawsuit moved to federal court, but the federal district judge sent it back down to state court. Industry lawyers appealed, arguing that a lawsuit involving U.S. officials belongs in federal court (this is called a federal officer removal statute). But the U.S. Court of Appeals for the Fourth Circuit upheld the ruling — a temporary victory for environmental advocates. Now, the Supreme Court will weigh in on whether the Fourth Circuit court should have taken a wider lens and looked at other reasons for removing the case to federal court, not just the federal officer jurisdiction.

It’s a small, procedural issue that could go on to affect similar climate liability lawsuits, since the plaintiffs in these cases, which include cities, counties, attorneys general, and even commercial fishermen, have been filing their lawsuits in state court.

It’s not a coincidence that climate liability lawsuits are filed in state courts: In 2011, the Supreme Court ruled against eight states that alleged that four utility companies were a public nuisance because their CO2 emissions contributed to climate change. Justice Ruth Bader Ginsburg, who authored that ruling in American Electric Power Co., Inc v. Connecticut, wrote that corporations can’t be sued for greenhouse gas emissions under federal common law. Luckily for these plaintiffs, the court didn’t weigh in on whether federal law supersedes state-law common nuisance suits.

Because of that ruling (and because federal courts are now stocked with Trump-appointed judges), oil companies have been trying to get the climate lawsuits filed in state courts moved to federal court. The tactic hasn’t been working out too well for them so far. The cases keep getting shunted back to state court.

It’s unclear why the Supreme Court is taking it up this issue now (it declined to weigh in on a jurisdictional matter concerning the climate lawsuits around this time last year). But if the court does end up siding with oil companies on this matter, the more than a dozen climate liability lawsuits in play right now could be in for an even rockier road ahead.

How the Republican Party Threatens the US Republic

By Joseph Stiglitz, Guardian UK

03 October 20

Without a big election victory for Democrats at all levels, Republican minority rule will be locked in indefinitely

hereas Nero famously fiddled while Rome burned, US President Donald Trump has famously hit the links at his money-losing golf courses while California burns – and as more than 200,000 Americans have died of Covid-19 – for which he himself has now tested positive. Like Nero, Trump will undoubtedly be remembered as an exceptionally cruel, inhumane, and possibly mad political figure.

Until recently, most people around the world had been exposed to this American tragedy in small doses, through short clips of Trump spouting lies and nonsense on the evening news or social media. But in late September, tens of millions of people endured a 90-minute spectacle, billed as a presidential “debate”, in which Trump demonstrated unequivocally that he is not presidential – and why so many people question his mental health.

To be sure, over the past four years, the world has watched this pathological liar set new records – logging some 20,000 falsehoods or misleading statements as of mid-July, by the Washington Post’s count. What kind of debate can there be when one of the two candidates has no credibility, and is not even there to debate?

When asked about the recent New York Times exposé showing that he had paid just $750 in US federal income tax in 2016 and 2017 – and nothing for many years before that – Trump hesitated and then claimed without evidence that he had paid “millions”. He was clearly offering whatever answer he thought would move things along to a more comfortable topic, and there is no good reason why anyone should believe him.

Even more disturbing was his refusal to denounce white supremacists and violent extremist groups such as the Proud Boys, whom he instructed to “stand back and stand by”. Combined with his refusal to commit to a peaceful transition of power and persistent efforts to delegitimise the voting process, Trump’s behaviour in the run-up to the election has increasingly posed a direct threat to American democracy.

When I was a child growing up in Gary, Indiana, we learned about the virtues of the US constitution – from the independent judiciary and the separation of powers to the importance of properly functioning checks and balances. Our forefathers appeared to have created a set of great institutions (though they were also guilty of hypocrisy in declaring that all people are created equal so long as they are not women or people of colour). When I served as chief economist at the World Bank in the late 1990s, we would travel the world lecturing others about good governance and good institutions, and the US was often held up as the exemplar of these concepts.

Not anymore. Trump and his fellow Republicans have cast a shadow on the American project, reminding us just how fragile – some might say flawed – our institutions and constitutional order are. We are a country of laws, but it is the political norms that make the system work. Norms are flexible, but they are also fragile. George Washington, America’s first president, decided that he would serve only two terms, and that created a norm that would not be broken until the presidency of Franklin D. Roosevelt. After that, a constitutional amendment codified the two-term limit.

Over the past four years, Trump and his fellow Republicans have taken norm-shattering to a new level, disgracing themselves and undermining the institutions they are supposed to defend. As a candidate in 2016, Trump refused to release his tax returns. And while in office, he has fired inspectors general for doing their jobs, repeatedly ignored conflicts of interest and profited from his office, undermined independent scientists and critical agencies, attempted outright voter suppression, and extorted foreign governments in an effort to defame his political opponents.

For good reason, we Americans are now wondering if our democracy can survive. One of the greatest worries of the founders, after all, was that a demagogue might emerge and destroy the system from within. That is partly why they settled on a structure of indirect representative democracy, with the electoral college and a system of what were supposed to be robust checks and balances. But after 233 years, that institutional structure is no longer robust enough. The GOP, particularly its representatives in the Senate, has failed utterly in its responsibility to check a dangerous and erratic executive as he openly wages war on the US constitutional order and electoral process.

There is a daunting task ahead. In addition to addressing an out-of-control pandemic, rising inequality, and the climate crisis, there is also an urgent need to rescue American democracy. With Republicans having long since neglected their oaths of office, democratic norms will have to be replaced with laws. But this will not be easy. When they are observed, norms are often preferable to laws, because they can be more easily adapted to future circumstances. Especially in America’s litigious society, there will always be those willing to circumvent laws by honouring their letter while violating their spirit.

But when one side no longer plays by the rules, stronger guardrails must be introduced. The good news is that we already have a roadmap. The For the People Act of 2019, which was adopted by the US House of Representatives early last year, set out an agenda to expand voting rights, limit partisan gerrymandering, strengthen ethics rules, and limit the influence of private donor money in politics. The bad news is that Republicans know they are increasingly in the minority on most of the critical issues in today’s politics. Americans want stronger gun control, a higher minimum wage, sensible environmental and financial regulations, affordable health insurance, expanded funding for preschool education, improved access to college, and greater limitations on money in politics.

The clearly expressed will of the majority puts the GOP in an impossible position: The party cannot simultaneously pursue its unpopular agenda and also endorse honest, transparent, democratic governance. That is why it is now openly waging war on American democracy, doubling down on efforts to disenfranchise voters, politicise the judiciary and the federal bureaucracy, and lock in minority rule permanently through tactics such as gerrymandering.

Since the GOP has already made its deal with the devil, there is no reason to expect its members to support any effort to renew and protect American democracy. The only option left for Americans is to deliver an overwhelming victory for Democrats at all levels in next month’s election. America’s democracy hangs in the balance. If it falls, democracy’s enemies around the world will win.