Local governments to argue against Big Oil at MD Supreme Court on Monday

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The Maryland Supreme Court is scheduled to hear arguments on Monday in three local governments’ lawsuits alleging fossil fuel companies covered up their knowledge about climate change.

The lawsuits — by Baltimore City, Annapolis and Anne Arundel County — have landed at the state’s high court after years of pre-trial litigation in both state and federal courts, including the U.S. Supreme Court.

The consolidated case is a key test of local governments’ recourse for the harm caused by climate change.

The court is set to consider, among several questions, whether the U.S. Constitution preempts state law claims for injuries caused by global greenhouse gas emissions. It will also consider whether Maryland law precludes the plaintiffs’ nuisance, trespass and failure-to-warn claims.

“For more than fifty years, Defendants have known their fossil-fuel products create greenhouse gas emissions that change Earth’s climate,” states the local governments’ opening brief before the Maryland Supreme Court.

“Instead of sharing their knowledge of those existential threats with the public, however, Defendants misrepresented and concealed their products’ risks.”

Locally, that alleged misinformation resulted in sea level rise, extreme heat, severe storms and more, resulting in property damage and harm to public health. “Remedying deceptive and misleading commercial conduct,” they argue, “is within the core of state police powers.”

The plaintiffs argue their case is bolstered by decisions by the state supreme courts of Hawaii and Colorado, which allowed similar cases to move forward and affirmed lower courts’ denials of the defendants’ motions to dismiss.

The companies being sued by Baltimore include BP, Chevron, CITGO, ExxonMobil, Shell and others. They argue the claims are both preempted by federal law and precluded by state law.

“Allowing such claims to proceed would not only usurp the power of the federal government to set climate policy but would also do so retrospectively and far beyond Maryland’s borders,” their principal brief states.

The companies also blame climate-warming emissions on individuals.

“Emissions, which Appellants allege are the mechanism of their injuries, are the result of billions of daily choices-made by governments, companies, and individuals around the world over more than a century-about what types of fuels to use and how to use them,” the brief states.

A Baltimore City Circuit Court judge granted the companies’ motion to dismiss last year; an Anne Arundel County Circuit Court judge ruled the same way in the other two jurisdictions’ cases in January.

The judges ruled that the claims under state law were preempted by the U.S. Constitution and federal law, and that the local governments were really trying to regulate emissions, rather than seeking to hold the companies accountable for decades of deception.

Quoting a 2021 decision in the U.S. Court of Appeals for the Second Circuit in a case brought by New York City, Baltimore City Circuit Judge Videtta Brown wrote that “artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.”

The city argues the judge “misconstrued” its deception argument.

Those decisions came after a long jurisdictional dispute in the Baltimore case. After Baltimore sued in 2018, the defendants removed the case to federal court. The next year, a federal judge remanded the case back to state court. The Fourth Circuit upheld the opinion twice, and the U.S. Supreme Court refused to hear an appeal in 2023, sending the case back to state court.

Vic Sher, of the San Francisco-based firm Sher Edling, which sues companies that pollute the environment, is set to argue for the local governments on Monday. Ted Boutrous, Jr., a Los Angeles-based partner at Gibson Dunn, is scheduled to argue on behalf of the fossil fuel companies.