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Why is Merrick Garland sticking with Donald Trump on climate lawsuits?

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It started with Boulder in early February. Then came Baltimore and San Mateo in April. Honolulu and Maui are now the latest municipalities to overcome a crucial legal hurdle in their fight to make fossil fuel companies pay for their role in climate change. After years of filibuster, it looks like state courts will hear arguments from these cities as well as several states that big energy companies have knowingly covered up and misrepresented the harms of their products, contributing to the climate damage these regions are experiencing. are confronted. Five federal appeals courts have given the green light to sue the fossil fuel giants in state court, where those state and local governments have a better chance of winning. The stakes are enormous: Forcing fossil fuel companies to foot the bill for climate change damages in US cities and states could easily run into the tens of billions.

Under President Donald Trump, the Justice Department has bent over backwards to side with Big Oil, supporting BP, Chevron, ExxonMobil, Shell and other companies against Oakland, San Francisco, Baltimore, New York and Rhode Island. At the time, the head of the DOJ’s environmental division was Jeffrey Clark, who is now under criminal investigation for supporting Trump’s plan to invalidate the election. (Trump even wanted to appoint Clark’s attorney general to encourage his plan, but he was dissuaded from bringing up the little-known lawyer.) In April 2021, attorneys general from five states and the District of Columbia wrote to the attorney general Merrick Garland, urging him to reverse the DOJ’s position. The urgency and importance for the DOJ to reverse these positions cannot be overstated, they stressed. The DOJ’s prior positions are flawed and contravene President Bidens’ commitment to support lawsuits like the ones our states have brought.

More than a year later, Garland has taken no action. Fossil fuel companies continue to cite governments’ arguments in their favor, making the strategic support Biden has pledged for ongoing climate litigation by plaintiffs against polluters worse than non-existent.

Fossil fuel companies have been fighting these municipal and state lawsuits for years, first moving them from state to federal court. This fight for venue is essential, because if plaintiffs’ claims were governed by federal law, they could be quickly dismissed. This resulted from a 2011 Supreme Court decision, AEP v. Connecticut, which barred common law federal claims of climate change liability. The Court ruled that they were displaced by the Clean Air Act. But the ruling left claims under the state’s common law as an option. After the AEP, cities and states turned to state courts to seek damages from the big energy companies.

With billions in penalties at stake, it’s no wonder the federal government, former and current government officials, law professors, professional associations, advocacy groups, and dozens of cities and states file briefs in these cases. More recently, the United States Conference of Mayors passed a resolution affirming its support for these lawsuits. Fossil fuel industry allies, such as corporate groups and conservative states, are part of the mix. But of all these third parties, the opinion of the federal government is generally the one that carries the most weight in the courts.

At their core, these cases allege corporate deception. Pay Up Climate Polluters, a Center for Climate Integrity project supporting the lawsuits, argues that the fossil fuel industry knew, it lied and should be held accountable for the consequences. Each complaint cites reports, internal communications and research commissioned by fossil fuel companies to show that the industry was aware of the disastrous effects of their products and, instead of being honest about the dangers or reducing their destructive impact. , has embarked on a decade-long disinformation campaign.

There is a clear precedent for these cases in state court: the massive tobacco settlement of the 1990s, in which attorneys general in 52 states and territories won billions of dollars for healthcare costs from the largest tobacco companies. tobacco. Like Big Tobacco, the case against Big Oil can be summed up simply: they knew and lied; they caused this crisis, so they should pay the price.

Like the tobacco industry decades ago, the fossil fuel industry is desperately trying to postpone its final judgment for the damage it has caused, said Robert Percival, director of the environmental law program at the ‘University of Maryland. His days are numbered.

Theodore J. Boutrous Jr., a partner at Gibson Dunn and Chevron’s attorney in several of these cases, said, “Interestingly, the administrations of both parties have argued that tackling climate change is a people’s business. policy makers and not the courts. He cited AEPs concluding that the EPA is surely better equipped to do the job than federal judges, who lack the scientific, economic and technological resources that an agency can draw upon to deal with such issues. Of course, six federal Supreme Court justices just undermined the EPA’s ability to do its job this summer with the June 29 court opinion in West Virginia v. EPA.

Municipalities and states point to the costs they bear due to climate change. Sea levels are expected to rise three feet along the San Mateos coastline by 2100, drowning ecosystems, parks, neighborhoods and infrastructure. Baltimore faces dozens of additional extreme heat days a year, severe storms and a four in five chance of flooding above nine feet by 2100. Many injuries include wildfires, drought , flooding, extreme hot days, higher transmission of insect-borne diseases, and increased ground-level ozone pollution.

The lawsuits allege energy companies misrepresented the harms of fossil fuels through subterfuge. They have funded dozens of think tanks, front groups and black money foundations lobbying for climate change denial. Without mincing words, the San Mateo lawyers wrote that the conduct of the fossil fuel companies was so vile, low and despicable that it would be looked down upon and looked down upon by reasonable people.

Amicus filings have long been an efficient and cost-effective way for the Department of Justice to articulate governments’ interest in foreign affairs. Under President Barack Obama, the Justice Department’s Civil Rights Division has dramatically increased its use of amicus filings to intervene in local civil rights cases. The New York Times describes the departments’ involvement in these cases as being narrowly focused on arguing specific constitutional law issues but with broad impact. Amicus filings clearly support plaintiffs and make the federal government aware of cases that are at the forefront of civil rights law.

The DOJ under Trump has publicly stated that the government opposes the plaintiffs. But the department could change course. It would require Garland, who critics say is hampered by shyness and adherence to old standards, to do an about-face.

The silence of the Biden administrations in these cases is infuriating for plaintiffs, given that Bidens has explicitly pledged to support such lawsuits.

During Trump’s presidency, a group of former government officials with experience in foreign policy, international trade, and environmental policy entered the fray in Rhode Island v. hinder American foreign policy. They brushed it off as a factual misunderstanding of US climate diplomacy.

The United States has no foreign policy interest in immunizing corporate deception, misconduct and concealment of the type alleged by Rhode Island from judicial review, they said.

When Biden took office, nine of those former government officials found themselves at the top of his administration: White House National Climate Advisor Gina McCarthy; Secretary of State Antony Blinken; Under Secretary of State Wendy Sherman; CIA Director William Burns; National Intelligence Director Avril Haines; the president’s special climate envoy John Kerry; Deputy to the President’s Special Envoy for the Climate Susan Biniaz; and Director of the Domestic Policy Council, Susan Rice. They have all expressed explicit support for Rhode Islands’ claims against Chevron. (As did Jonathan Pershing, the 2021-2022 deputy climate envoy.) Yet even with these officials in power, the Justice Department clings to the position it held under Trump.

Given the DOJ’s limited budget and resources, supporting these lawsuits is precisely the kind of effective, inexpensive action that could advance Bidens’ climate agenda. This legal route is even more attractive following the Supreme Court’s recent decision in West Virginia v. EPA, which restricted one of EPA’s tools to regulate greenhouse gas emissions under the Clean Air Act. Dan Farber, a law professor at the University of California at Berkeley, noted that there had been a bargain with industry: to accept the regulatory authority of the EPA in exchange for immunity from prosecution. But with the agency regulator under attack and fossil fuel companies and conservative business groups hailing the West Virginia v. EPA as a victory, such a market can not stand.

Which begs the question: Why? What’s going on at Main Justice? Why didn’t Garland reverse course? Farber admits Garland might be trying to avoid getting caught in the crossfire. He told me he could imagine that if the opinion in West Virginia v. tool.

For Rhode Island v. Chevron, at least, the window for the DOJ to withdraw its Trump-era case properly reopened in late May, when the First Circuit returned the case to state court. John C. Cruden, director of Beveridge and Diamond and former environmental division chief under Obama, said, “I don’t know what the DOJ is going to do. I only know they now have a decision point The state court did not have jurisdiction until the First Circuit resolved the dismissal appeal, so now would be an appropriate time for the DOJ to review which position they now believe appropriate since the skill is no longer a issue.

Just as many Americans are anxiously waiting to see if Garlands’ Justice Department will prosecute Trump, the environmental community is waiting to see if the 69-year-old former prosecutor will reverse the Trump-era stance on these climate suits and join the fight. Throwing the weight of federal governments behind governments struggling to hold fossil fuel companies accountable should not wait any longer.

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