1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

5
00:00:16,280 --> 00:00:20,520
Speaker 1: and on Bloomberg dot com slash podcasts. Climate nuisance litigation

6
00:00:20,560 --> 00:00:23,200
Speaker 1: has been building for years, and now the Supreme Court

7
00:00:23,239 --> 00:00:26,360
Speaker 1: is set to decide whether green light proceedings in state

8
00:00:26,400 --> 00:00:29,360
Speaker 1: courts for several cases in which state and local government

9
00:00:29,360 --> 00:00:32,519
Speaker 1: officials are trying to hold oil companies accountable for their

10
00:00:32,640 --> 00:00:36,520
Speaker 1: role in climate change. Industry lawyers have filed three emergency

11
00:00:36,560 --> 00:00:40,840
Speaker 1: requests that asked the Jostices to stall cases from Rhode Island, Baltimore,

12
00:00:40,840 --> 00:00:44,800
Speaker 1: and Colorado. Joining me is Brandon Barnes, Bloomberg Intelligence Senior

13
00:00:44,840 --> 00:00:48,600
Speaker 1: analyst for Energy Litigation, explain how state and local governments

14
00:00:48,640 --> 00:00:52,960
Speaker 1: have been using public nuisance laws against energy companies. Public

15
00:00:53,080 --> 00:00:55,800
Speaker 1: nuisance is sort of a catch all category for the

16
00:00:55,920 --> 00:00:58,440
Speaker 1: state local governments to be able to try and enforce.

17
00:00:59,000 --> 00:01:02,160
Speaker 1: Their idea is that somebody should pay to improve the

18
00:01:02,200 --> 00:01:07,000
Speaker 1: infrastructure that is being exposed to climate change issues. Let's

19
00:01:07,000 --> 00:01:11,280
Speaker 1: say it's increased erosion from more strength and storms as

20
00:01:11,280 --> 00:01:13,759
Speaker 1: a result of climate change. And the way I think

21
00:01:13,800 --> 00:01:16,679
Speaker 1: about it really is that the courts, through public nuisance

22
00:01:16,720 --> 00:01:18,960
Speaker 1: as a doctrine, are sort of the funnel through which

23
00:01:19,120 --> 00:01:21,960
Speaker 1: a lot of these entities are putting their frustrations with

24
00:01:22,080 --> 00:01:25,640
Speaker 1: the federal government for acting on climate change regulation. And

25
00:01:25,959 --> 00:01:29,120
Speaker 1: it's a very broad doctrine that's not as well defined,

26
00:01:29,280 --> 00:01:31,440
Speaker 1: and so you can try to kind of push some

27
00:01:31,560 --> 00:01:34,960
Speaker 1: of these issues to get your results. Industry lawyers have

28
00:01:34,959 --> 00:01:40,160
Speaker 1: filed three emergency request asking the Supreme Court to stall cases.

29
00:01:40,880 --> 00:01:43,880
Speaker 1: Why the rush to the Supreme Court, The real hubbub

30
00:01:44,200 --> 00:01:47,440
Speaker 1: right now is basically procedural. You know, they're going to

31
00:01:47,440 --> 00:01:49,960
Speaker 1: Supreme Court right now to try and really preserve judicial

32
00:01:50,000 --> 00:01:54,000
Speaker 1: resources and sort of economy to stop allowing there to

33
00:01:54,040 --> 00:01:57,320
Speaker 1: be so many proceedings on the same issue. How likely

34
00:01:57,520 --> 00:01:59,520
Speaker 1: is it that the Supreme Court will step in here?

35
00:02:00,280 --> 00:02:02,040
Speaker 1: It's a high bar. It's a really high bar to

36
00:02:02,240 --> 00:02:04,919
Speaker 1: get the court to even review this kind of issue

37
00:02:05,000 --> 00:02:09,079
Speaker 1: because district court orders on remand typically aren't revealable on

38
00:02:09,160 --> 00:02:11,320
Speaker 1: appeal unless you fit into a really kind of small

39
00:02:11,360 --> 00:02:14,520
Speaker 1: exception that's difficult to argue here, which is that there's

40
00:02:14,560 --> 00:02:16,880
Speaker 1: a federal officer involved, and so they're really kind of

41
00:02:16,919 --> 00:02:19,280
Speaker 1: trying to twist to get into the court to have

42
00:02:19,480 --> 00:02:23,400
Speaker 1: them stop this action from continuing in two jurisdictions at

43
00:02:23,400 --> 00:02:25,560
Speaker 1: the same time. In each one of these cases, they're

44
00:02:25,600 --> 00:02:29,919
Speaker 1: essentially asking the Supreme Court to the side whether state

45
00:02:29,960 --> 00:02:33,720
Speaker 1: court proceedings should be held, stayed, or held in the bands,

46
00:02:33,800 --> 00:02:36,600
Speaker 1: while the Circuit court on the federal level the sides

47
00:02:36,840 --> 00:02:39,920
Speaker 1: their federal state court should hear these cases. And that

48
00:02:40,000 --> 00:02:43,880
Speaker 1: by itself sounds pretty minimal procedural issue. But the real

49
00:02:43,960 --> 00:02:46,720
Speaker 1: interesting thing is that underpinning that decisions of the Sucreme

50
00:02:46,760 --> 00:02:50,959
Speaker 1: Court is a decision of what type of claim these

51
00:02:51,000 --> 00:02:55,280
Speaker 1: climate change public nuisance cases actually are, and that is

52
00:02:55,480 --> 00:02:58,880
Speaker 1: determinative of whether these cases can move forward past procedural

53
00:02:59,000 --> 00:03:02,079
Speaker 1: stages where they've been grounded in federal common law. If

54
00:03:02,080 --> 00:03:04,919
Speaker 1: the Supreme Court does not step in, what's the risk

55
00:03:04,919 --> 00:03:07,239
Speaker 1: of these oil companies if they have to face state

56
00:03:07,240 --> 00:03:11,000
Speaker 1: court proceedings and discovery there. The risk is in the billions.

57
00:03:11,040 --> 00:03:14,600
Speaker 1: It's really unquantifiable if we're talking about a worst case scenario,

58
00:03:14,680 --> 00:03:17,400
Speaker 1: because you know, the ask is you need to tore

59
00:03:17,520 --> 00:03:19,680
Speaker 1: up all of our sea walls, you need to discourage

60
00:03:19,720 --> 00:03:22,040
Speaker 1: some of your profits from you know, the fact that

61
00:03:22,080 --> 00:03:24,679
Speaker 1: you made a product that you sold to us that

62
00:03:25,000 --> 00:03:27,880
Speaker 1: wasn't helpful to the climate, and then you told us

63
00:03:27,880 --> 00:03:30,320
Speaker 1: it was going to be. The risk is that they

64
00:03:30,320 --> 00:03:33,240
Speaker 1: go to state court and the state court applies state

65
00:03:33,280 --> 00:03:36,320
Speaker 1: common law nuisance claims, where you don't know what the

66
00:03:36,360 --> 00:03:38,880
Speaker 1: president looks like and you don't know which way a

67
00:03:38,920 --> 00:03:42,360
Speaker 1: state court could go where federal common law nuisance has

68
00:03:42,360 --> 00:03:46,240
Speaker 1: already been pretty clearly stated out by Supreme Court and

69
00:03:46,280 --> 00:03:48,600
Speaker 1: other certain courts. So you're going from the certainty of

70
00:03:48,640 --> 00:03:51,800
Speaker 1: potentially a win and it's a vast unknown if you

71
00:03:51,920 --> 00:03:54,480
Speaker 1: go to the state courts. What about what might be

72
00:03:54,560 --> 00:03:58,120
Speaker 1: found out in discovery and just the extent that discovery

73
00:03:58,160 --> 00:04:01,360
Speaker 1: could take. Yeah, I think discover is probably the real

74
00:04:01,520 --> 00:04:04,080
Speaker 1: risk in my mind as this played out over years,

75
00:04:04,080 --> 00:04:06,840
Speaker 1: is this is part of potentially a longer term strategy

76
00:04:06,920 --> 00:04:11,120
Speaker 1: where if the plaintiffs being you know, the states, the

77
00:04:11,200 --> 00:04:13,880
Speaker 1: counties and some of the interest groups that are involved

78
00:04:14,440 --> 00:04:18,120
Speaker 1: get a look at, you know, the discovery materials from

79
00:04:18,200 --> 00:04:20,440
Speaker 1: some of the companies, they're gonna probably try to go

80
00:04:20,480 --> 00:04:22,839
Speaker 1: on a fishing atidition to try and see what else

81
00:04:22,920 --> 00:04:27,520
Speaker 1: was there. You know, when certain R and D departments

82
00:04:27,560 --> 00:04:31,360
Speaker 1: were deciding what happened, what risks were, etcetera, and how

83
00:04:31,400 --> 00:04:33,600
Speaker 1: they were kind of calculating their own internal risks related

84
00:04:33,640 --> 00:04:36,320
Speaker 1: to climate change. And we've seen that play out in

85
00:04:36,520 --> 00:04:38,480
Speaker 1: UM in the X and case in New York. It

86
00:04:38,560 --> 00:04:41,120
Speaker 1: is a different case, but there's been i mean, a

87
00:04:41,240 --> 00:04:45,039
Speaker 1: two year protracted battle over discovery and that I think

88
00:04:45,240 --> 00:04:48,840
Speaker 1: could yield you know, major other claims if if they

89
00:04:48,839 --> 00:04:50,960
Speaker 1: can find that evidence. But they would never have that

90
00:04:51,120 --> 00:04:53,599
Speaker 1: unless they got to this stage in these climate case.

91
00:04:54,000 --> 00:04:58,960
Speaker 1: Five circuit courts have some climate liability cases before them,

92
00:04:59,040 --> 00:05:01,719
Speaker 1: so this hasn't re each the circuit court stage yet.

93
00:05:01,720 --> 00:05:05,240
Speaker 1: The circuit courts haven't decided not not on this, not

94
00:05:05,360 --> 00:05:08,680
Speaker 1: on this swath of cases. This is sort of all

95
00:05:08,760 --> 00:05:12,440
Speaker 1: in the preliminary stages of whether this should be litigated

96
00:05:12,520 --> 00:05:15,159
Speaker 1: in federal court or in state court. The question that's

97
00:05:15,240 --> 00:05:17,200
Speaker 1: really in front of the circuit courts right now, and

98
00:05:17,279 --> 00:05:19,320
Speaker 1: that's the question that's going up to the Supreme Court

99
00:05:19,400 --> 00:05:22,520
Speaker 1: because you know, there's really favorable precedent in the federal

100
00:05:22,600 --> 00:05:26,080
Speaker 1: circuit and federal courts related federal common law for the

101
00:05:26,120 --> 00:05:29,839
Speaker 1: companies and it's a vast unknown if you go to

102
00:05:29,880 --> 00:05:32,240
Speaker 1: the state courts, which obviously, if you're a company, you

103
00:05:32,279 --> 00:05:34,280
Speaker 1: do not want to deal in uncertainty in these kind

104
00:05:34,279 --> 00:05:37,039
Speaker 1: of with dis in front of you. Thanks Brandon, that's

105
00:05:37,080 --> 00:05:42,560
Speaker 1: Brandon Barnes, Bloomberg Intelligence, Senior Analyst for Energy Litigation. Thanks

106
00:05:42,560 --> 00:05:45,880
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

107
00:05:45,880 --> 00:05:49,120
Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

108
00:05:49,200 --> 00:05:53,680
Speaker 1: on Bloomberg dot com slash podcast. I'm June Brasso. This

109
00:05:54,000 --> 00:05:54,680
Speaker 1: is Bloomberg