Maryland lawsuits against Big Oil should go forward

A trio of local governments in Maryland have taken Big Oil companies to court to make them pay for deceiving the public about the dangers of climate change and the role their products play in fueling it. Now it’s up to the Maryland Supreme Court to decide whether their cases should move forward.

Faced with rising costs and threats from extreme heat, floods, storms, and rising seas, Baltimore City, Annapolis, and Anne Arundel County filed separate lawsuits to hold ExxonMobil, Chevron, and other major fossil fuel producers accountable for a well-documented, Big Tobacco-style “campaign of deception” about the harms of their products.

Unfortunately, a pair of Maryland judges wrongly dismissed the communities’ lawsuits before they were able to make their case to a jury, deviating from the findings of numerous other courts across the country, including the only two state supreme courts to have taken up the issue. The Maryland Supreme Court, which will hear arguments in the cases in October, has the opportunity to rectify this.

Baltimore, Annapolis, and Anne Arundel’s complaints each dedicate more than 50 pages to describing how fossil fuel companies obtained sophisticated knowledge about the dangers associated with their products, concealed this information from the public, and then carried out a multi-decade campaign to actively deceive the public about the dangers of climate change and the role fossil fuels play in causing it.

As the Fourth Circuit previously stated, the Baltimore case “clearly seeks to challenge the promotion and sale of fossil-fuel products without warning and abetted by a sophisticated disinformation campaign.” In other words, climate deception cases like these are about “a decades-long story of deceit” where “the culprit is Defendants’ words, not their emissions.”

Contrary to the content of the complaints and against plaintiffs’ objections, two state judges mischaracterized the communities’ deception cases as attempts to regulate greenhouse gas emissions. At this stage of litigation, judges are required to defer to the plaintiffs’ articulation of their own case, so it is perhaps unsurprising that courts in other states, such as Minnesota, where a judge agreed that a similar case against Exxon and others could advance toward trial, are already calling the Baltimore decision “wrongly decided” for mischaracterizing plaintiffs’ claims this way.

Even if the courts’ mischaracterization of the Maryland communities’ claims were correct, federal law would still not preempt them.

So how did the Maryland courts get it wrong? The Maryland judges ignored the Supreme Court’s instruction to assess whether the Clean Air Act preempts state law claims (it does not) and instead concluded that the Maryland communities’ state law claims here are preempted by a body of judge-made federal law that predated the Clean Air Act and no longer exists.

In rendering their decisions, the Maryland courts relied almost entirely on the Second Circuit’s discredited (and factually distinct) decision in City of New York v. Chevron, which other courts have criticized as being “at odds with Supreme Court precedent.” As the Fourth Circuit previously stated in the Baltimore case, City of New York “evades the careful analysis that the Supreme Court requires” when dealing with preemption and federalism questions. Consequently, as the Colorado Supreme Court and others have recognized, reliance on City of New York is “misplaced.”

As the Hawaii Supreme Court said, City of New York engages in “backwards reasoning,” and as a Colorado court noted in a similar case to the Maryland cases, following this flawed reasoning will leave communities “without legal recourse” for the harm defendants’ alleged wrongful conduct has caused. In adopting this reasoning, the Maryland courts effectively determined that if a company causes harm everywhere, it cannot be held accountable anywhere.

No state appellate court, let alone a state supreme court, has reached this same conclusion in a climate deception case. On the contrary, courts across the country – including the supreme courts of Hawaii and Colorado – have rejected this reasoning and declined what one Colorado court referred to as the fossil fuel defendants’ “invitation to go down this road to nowhere.” The Maryland Supreme Court should do the same.

Fossil fuel companies’ deception has caused and will continue to cause costly climate damages to Maryland communities. Annapolis is already facing a $100 million bill to protect its City Dock against climate-driven flooding. How many other public buildings, businesses, and infrastructure will need similar treatment?

Maryland communities are rightly placing the blame and the bill for climate deception where it belongs – with the fossil fuel companies that knew that their products would cause these damages but lied in order to protect their bottom line. Baltimore, Annapolis, and Anne Arundel County deserve to have their day in court to present that evidence to a jury.

Shannon Marcoux is a staff attorney at the Center for Climate Integrity.