Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Climate nuisance litigation
Speaker 1: has been building for years, and now the Supreme Court
Speaker 1: is set to decide whether green light proceedings in state
Speaker 1: courts for several cases in which state and local government
Speaker 1: officials are trying to hold oil companies accountable for their
Speaker 1: role in climate change. Industry lawyers have filed three emergency
Speaker 1: requests that asked the Jostices to stall cases from Rhode Island, Baltimore,
Speaker 1: and Colorado. Joining me is Brandon Barnes, Bloomberg Intelligence Senior
Speaker 1: analyst for Energy Litigation, explain how state and local governments
Speaker 1: have been using public nuisance laws against energy companies. Public
Speaker 1: nuisance is sort of a catch all category for the
Speaker 1: state local governments to be able to try and enforce.
Speaker 1: Their idea is that somebody should pay to improve the
Speaker 1: infrastructure that is being exposed to climate change issues. Let's
Speaker 1: say it's increased erosion from more strength and storms as
Speaker 1: a result of climate change. And the way I think
Speaker 1: about it really is that the courts, through public nuisance
Speaker 1: as a doctrine, are sort of the funnel through which
Speaker 1: a lot of these entities are putting their frustrations with
Speaker 1: the federal government for acting on climate change regulation. And
Speaker 1: it's a very broad doctrine that's not as well defined,
Speaker 1: and so you can try to kind of push some
Speaker 1: of these issues to get your results. Industry lawyers have
Speaker 1: filed three emergency request asking the Supreme Court to stall cases.
Speaker 1: Why the rush to the Supreme Court, The real hubbub
Speaker 1: right now is basically procedural. You know, they're going to
Speaker 1: Supreme Court right now to try and really preserve judicial
Speaker 1: resources and sort of economy to stop allowing there to
Speaker 1: be so many proceedings on the same issue. How likely
Speaker 1: is it that the Supreme Court will step in here?
Speaker 1: It's a high bar. It's a really high bar to
Speaker 1: get the court to even review this kind of issue
Speaker 1: because district court orders on remand typically aren't revealable on
Speaker 1: appeal unless you fit into a really kind of small
Speaker 1: exception that's difficult to argue here, which is that there's
Speaker 1: a federal officer involved, and so they're really kind of
Speaker 1: trying to twist to get into the court to have
Speaker 1: them stop this action from continuing in two jurisdictions at
Speaker 1: the same time. In each one of these cases, they're
Speaker 1: essentially asking the Supreme Court to the side whether state
Speaker 1: court proceedings should be held, stayed, or held in the bands,
Speaker 1: while the Circuit court on the federal level the sides
Speaker 1: their federal state court should hear these cases. And that
Speaker 1: by itself sounds pretty minimal procedural issue. But the real
Speaker 1: interesting thing is that underpinning that decisions of the Sucreme
Speaker 1: Court is a decision of what type of claim these
Speaker 1: climate change public nuisance cases actually are, and that is
Speaker 1: determinative of whether these cases can move forward past procedural
Speaker 1: stages where they've been grounded in federal common law. If
Speaker 1: the Supreme Court does not step in, what's the risk
Speaker 1: of these oil companies if they have to face state
Speaker 1: court proceedings and discovery there. The risk is in the billions.
Speaker 1: It's really unquantifiable if we're talking about a worst case scenario,
Speaker 1: because you know, the ask is you need to tore
Speaker 1: up all of our sea walls, you need to discourage
Speaker 1: some of your profits from you know, the fact that
Speaker 1: you made a product that you sold to us that
Speaker 1: wasn't helpful to the climate, and then you told us
Speaker 1: it was going to be. The risk is that they
Speaker 1: go to state court and the state court applies state
Speaker 1: common law nuisance claims, where you don't know what the
Speaker 1: president looks like and you don't know which way a
Speaker 1: state court could go where federal common law nuisance has
Speaker 1: already been pretty clearly stated out by Supreme Court and
Speaker 1: other certain courts. So you're going from the certainty of
Speaker 1: potentially a win and it's a vast unknown if you
Speaker 1: go to the state courts. What about what might be
Speaker 1: found out in discovery and just the extent that discovery
Speaker 1: could take. Yeah, I think discover is probably the real
Speaker 1: risk in my mind as this played out over years,
Speaker 1: is this is part of potentially a longer term strategy
Speaker 1: where if the plaintiffs being you know, the states, the
Speaker 1: counties and some of the interest groups that are involved
Speaker 1: get a look at, you know, the discovery materials from
Speaker 1: some of the companies, they're gonna probably try to go
Speaker 1: on a fishing atidition to try and see what else
Speaker 1: was there. You know, when certain R and D departments
Speaker 1: were deciding what happened, what risks were, etcetera, and how
Speaker 1: they were kind of calculating their own internal risks related
Speaker 1: to climate change. And we've seen that play out in
Speaker 1: UM in the X and case in New York. It
Speaker 1: is a different case, but there's been i mean, a
Speaker 1: two year protracted battle over discovery and that I think
Speaker 1: could yield you know, major other claims if if they
Speaker 1: can find that evidence. But they would never have that
Speaker 1: unless they got to this stage in these climate case.
Speaker 1: Five circuit courts have some climate liability cases before them,
Speaker 1: so this hasn't re each the circuit court stage yet.
Speaker 1: The circuit courts haven't decided not not on this, not
Speaker 1: on this swath of cases. This is sort of all
Speaker 1: in the preliminary stages of whether this should be litigated
Speaker 1: in federal court or in state court. The question that's
Speaker 1: really in front of the circuit courts right now, and
Speaker 1: that's the question that's going up to the Supreme Court
Speaker 1: because you know, there's really favorable precedent in the federal
Speaker 1: circuit and federal courts related federal common law for the
Speaker 1: companies and it's a vast unknown if you go to
Speaker 1: the state courts, which obviously, if you're a company, you
Speaker 1: do not want to deal in uncertainty in these kind
Speaker 1: of with dis in front of you. Thanks Brandon, that's
Speaker 1: Brandon Barnes, Bloomberg Intelligence, Senior Analyst for Energy Litigation. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and
Speaker 1: on Bloomberg dot com slash podcast. I'm June Brasso. This
Speaker 1: is Bloomberg