Supremely Good Timing

You likely have heard that the Supreme Court reached the right decision today in BP plc et al. v. City of Baltimore. That opinion concerns a mildly weedy procedural mater (whether the 4th Cir. erred in holding that it lacked the power to consider all of the defendants’ grounds for removal), but a critical one given the circumstances, and an opinion which should help in removing these cases to federal court where they belong.

All of these suits represent transparent attempts to manufacture state jurisdiction for a campaign whose proponents previously admitted was a national one to substitute verdicts for Congress’s refusal to adopt certain policies. This opinion serves as another reminder of the importance of the state vs federal jurisdictional issue in the wave of “climate” litigation washing over state courthouses around the country.

In the City of Baltimore case, GAO client Energy Policy Advocates (EPA) filed amicus briefs establishing what it had obtained, at the time, showing what these suits were about: obtaining a “sustainable funding stream” to underwrite governmental spending ambitions, and to coerce the defendants into becoming lobbyists for and funders of further lobbying for a national “climate” regulatory regime targeting hydrocarbon energy for extinction.

Tomorrow, EPA will release a report that reveals, for the first time, damning details confirming who is actually conducting this purportedly governmental litigation campaign and how they are doing it, as described in the parties’ own hand.

EPA’s work under state freedom of information laws has now made it no longer credible to continue questioning who is really bringing these nominally governmental suits into being. Specifically, this puts to rest forever an unfortunate claim by a federal judge almost precisely three years ago of “a missing link between the activists and AGs.” Not anymore.

This should be relevant to all pending state climate litigation, and other efforts such as Exxon Mobil’s move currently before the Texas State Supreme Court to obtain pre-suit discovery, and learn what is behind these raids by, e.g., California cities on Texas-based companies to fill the municipal coffers, and the plaintiffs’/advisors’ associated advocacy. Given what EPA has now learned and produced for public education, it seems inevitable that such efforts would be replicated to examine other suits filed in the Midwest and on the East Coast.

On remand to the Fourth Circuit — and in other fora in coming months — EPA looks forward to shedding more light on these improper litigation tactics.

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