The Biden administration asked the Supreme Court this week not to take up a legal battle between Honolulu and fossil fuel companies over climate change.
U.S. Solicitor General Elizabeth Prelogar told the justices it’s premature for the high court to get involved after the Hawaii Supreme Court rejected the oil companies’ attempt to dismiss the lawsuit.
The lawsuit was brought by the city of Honolulu alleging liability against several major fossil fuel companies for contributing to climate change. The claims state the companies were deceptive about the damage being done to the environment.
“Postponing review until final judgment would thus allow the court to consider all of the federal issues presented in this case at one time,” Ms. Prelogar wrote in her Tuesday filing.
Theodore J. Boutrous Jr., representing Chevron Corp., has urged the justice to take up the dispute after the companies failed in their effort to get the case moved to federal court and dismissed in Hawaii state court.
“The Hawaii Supreme Court’s decision flatly contradicts U.S. Supreme Court precedent and other federal circuit court decisions,” Mr. Boutrous said. “In dismissing a nearly identical lawsuit, the 2nd Circuit held, ’Such a sprawling case is simply beyond the limits of state law.’ The U.S. Supreme Court should grant review now to prevent pointless harm to our nation’s energy security.”
More than a dozen energy companies have asked the Supreme Court to review a ruling from the Hawaii Supreme Court that is letting Honolulu sue them in state court, where the city claims the companies have committed public and private nuisances, trespassed, failed to warn and acted negligently about climate damage.
Honolulu cites flooding, rising sea levels, erosion and habitat loss for species for the environmental damage it experienced.
The companies, though, say a similar case in the 2nd U.S. Circuit Court of Appeals was rejected when it said federal law trumps the state law claims.
Since 2017, dozens of state and local governments have filed lawsuits saying fossil fuel giants’ production, marketing and sales have contributed to climate change.
The justices asked the U.S. solicitor general to express the federal government’s position in the dispute in June, prompting Ms. Prelogar to file her brief this week. Typically, justices ask for the solicitor general’s view on a matter they’re considering to take up.
A new solicitor general, though, is coming in under President-elect Donald Trump in January. D. John Sauer has been nominated for that post, and it’s unclear if he would agree with Ms. Prelogar’s position.
But Donald Kochan, a law professor at George Mason University, said it’s unlikely the justices would request the position of a new administration.
“The court could request it, but I suspect they would not because it would seem outside their purview to presume the new administration would take a different position simply because it is new or of a different party. So, more likely, the new administration would need … to amend their brief or supplement their prior filing, at which point they might ’clarify’ the position of the United States by filing a new brief,” he said.
It would take four justices to vote in favor of reviewing the legal battle for oral arguments to be granted.
The case is Sunoco LP, et al., v. City and County of Honolulu, Hawaii, et al.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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