WEBVTT - Justices to Decide If Climate Test Cases Move Forward

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Climate nuisance litigation

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<v Speaker 1>has been building for years, and now the Supreme Court

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<v Speaker 1>is set to decide whether green light proceedings in state

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<v Speaker 1>courts for several cases in which state and local government

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<v Speaker 1>officials are trying to hold oil companies accountable for their

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<v Speaker 1>role in climate change. Industry lawyers have filed three emergency

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<v Speaker 1>requests that asked the Jostices to stall cases from Rhode Island, Baltimore,

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<v Speaker 1>and Colorado. Joining me is Brandon Barnes, Bloomberg Intelligence Senior

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<v Speaker 1>analyst for Energy Litigation, explain how state and local governments

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<v Speaker 1>have been using public nuisance laws against energy companies. Public

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<v Speaker 1>nuisance is sort of a catch all category for the

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<v Speaker 1>state local governments to be able to try and enforce.

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<v Speaker 1>Their idea is that somebody should pay to improve the

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<v Speaker 1>infrastructure that is being exposed to climate change issues. Let's

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<v Speaker 1>say it's increased erosion from more strength and storms as

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<v Speaker 1>a result of climate change. And the way I think

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<v Speaker 1>about it really is that the courts, through public nuisance

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<v Speaker 1>as a doctrine, are sort of the funnel through which

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<v Speaker 1>a lot of these entities are putting their frustrations with

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<v Speaker 1>the federal government for acting on climate change regulation. And

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<v Speaker 1>it's a very broad doctrine that's not as well defined,

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<v Speaker 1>and so you can try to kind of push some

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<v Speaker 1>of these issues to get your results. Industry lawyers have

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<v Speaker 1>filed three emergency request asking the Supreme Court to stall cases.

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<v Speaker 1>Why the rush to the Supreme Court, The real hubbub

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<v Speaker 1>right now is basically procedural. You know, they're going to

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<v Speaker 1>Supreme Court right now to try and really preserve judicial

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<v Speaker 1>resources and sort of economy to stop allowing there to

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<v Speaker 1>be so many proceedings on the same issue. How likely

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<v Speaker 1>is it that the Supreme Court will step in here?

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<v Speaker 1>It's a high bar. It's a really high bar to

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<v Speaker 1>get the court to even review this kind of issue

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<v Speaker 1>because district court orders on remand typically aren't revealable on

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<v Speaker 1>appeal unless you fit into a really kind of small

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<v Speaker 1>exception that's difficult to argue here, which is that there's

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<v Speaker 1>a federal officer involved, and so they're really kind of

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<v Speaker 1>trying to twist to get into the court to have

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<v Speaker 1>them stop this action from continuing in two jurisdictions at

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<v Speaker 1>the same time. In each one of these cases, they're

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<v Speaker 1>essentially asking the Supreme Court to the side whether state

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<v Speaker 1>court proceedings should be held, stayed, or held in the bands,

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<v Speaker 1>while the Circuit court on the federal level the sides

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<v Speaker 1>their federal state court should hear these cases. And that

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<v Speaker 1>by itself sounds pretty minimal procedural issue. But the real

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<v Speaker 1>interesting thing is that underpinning that decisions of the Sucreme

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<v Speaker 1>Court is a decision of what type of claim these

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<v Speaker 1>climate change public nuisance cases actually are, and that is

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<v Speaker 1>determinative of whether these cases can move forward past procedural

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<v Speaker 1>stages where they've been grounded in federal common law. If

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<v Speaker 1>the Supreme Court does not step in, what's the risk

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<v Speaker 1>of these oil companies if they have to face state

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<v Speaker 1>court proceedings and discovery there. The risk is in the billions.

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<v Speaker 1>It's really unquantifiable if we're talking about a worst case scenario,

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<v Speaker 1>because you know, the ask is you need to tore

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<v Speaker 1>up all of our sea walls, you need to discourage

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<v Speaker 1>some of your profits from you know, the fact that

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<v Speaker 1>you made a product that you sold to us that

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<v Speaker 1>wasn't helpful to the climate, and then you told us

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<v Speaker 1>it was going to be. The risk is that they

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<v Speaker 1>go to state court and the state court applies state

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<v Speaker 1>common law nuisance claims, where you don't know what the

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<v Speaker 1>president looks like and you don't know which way a

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<v Speaker 1>state court could go where federal common law nuisance has

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<v Speaker 1>already been pretty clearly stated out by Supreme Court and

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<v Speaker 1>other certain courts. So you're going from the certainty of

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<v Speaker 1>potentially a win and it's a vast unknown if you

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<v Speaker 1>go to the state courts. What about what might be

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<v Speaker 1>found out in discovery and just the extent that discovery

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<v Speaker 1>could take. Yeah, I think discover is probably the real

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<v Speaker 1>risk in my mind as this played out over years,

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<v Speaker 1>is this is part of potentially a longer term strategy

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<v Speaker 1>where if the plaintiffs being you know, the states, the

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<v Speaker 1>counties and some of the interest groups that are involved

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<v Speaker 1>get a look at, you know, the discovery materials from

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<v Speaker 1>some of the companies, they're gonna probably try to go

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<v Speaker 1>on a fishing atidition to try and see what else

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<v Speaker 1>was there. You know, when certain R and D departments

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<v Speaker 1>were deciding what happened, what risks were, etcetera, and how

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<v Speaker 1>they were kind of calculating their own internal risks related

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<v Speaker 1>to climate change. And we've seen that play out in

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<v Speaker 1>UM in the X and case in New York. It

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<v Speaker 1>is a different case, but there's been i mean, a

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<v Speaker 1>two year protracted battle over discovery and that I think

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<v Speaker 1>could yield you know, major other claims if if they

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<v Speaker 1>can find that evidence. But they would never have that

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<v Speaker 1>unless they got to this stage in these climate case.

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<v Speaker 1>Five circuit courts have some climate liability cases before them,

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<v Speaker 1>so this hasn't re each the circuit court stage yet.

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<v Speaker 1>The circuit courts haven't decided not not on this, not

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<v Speaker 1>on this swath of cases. This is sort of all

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<v Speaker 1>in the preliminary stages of whether this should be litigated

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<v Speaker 1>in federal court or in state court. The question that's

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<v Speaker 1>really in front of the circuit courts right now, and

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<v Speaker 1>that's the question that's going up to the Supreme Court

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<v Speaker 1>because you know, there's really favorable precedent in the federal

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<v Speaker 1>circuit and federal courts related federal common law for the

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<v Speaker 1>companies and it's a vast unknown if you go to

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<v Speaker 1>the state courts, which obviously, if you're a company, you

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<v Speaker 1>do not want to deal in uncertainty in these kind

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<v Speaker 1>of with dis in front of you. Thanks Brandon, that's

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<v Speaker 1>Brandon Barnes, Bloomberg Intelligence, Senior Analyst for Energy Litigation. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on Bloomberg dot com slash podcast. I'm June Brasso. This

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<v Speaker 1>is Bloomberg