After stumbling at the Supreme Court, major oil companies and pro-industry groups are questioning the objectivity of state judges who will decide the fate of climate liability lawsuits that could cost the fossil fuel industry billions of dollars.
In Rhode Island, companies being sued by the state to pay up for the ravages of climate change say a judge hearing the case — one of about two dozen such challenges playing out nationwide — created the “appearance of bias” by citing two news stories that had not previously been entered into the record.
And in another climate liability case in Hawaii, a conservative group has questioned the objectivity of a judge because of his involvement with an organization that provides legal education on a range of topics, including climate science.
The moves come as an array of climate lawsuits by cities, counties and states are moving toward trial in state courts from Hoboken, N.J., to Honolulu, following the Supreme Court’s April rejection of an industry bid to quash the cases on procedural grounds.
“They’ve lost round one, so they’re working the refs, trying to intimidate the judges,” said Richard Wiles, president of the Center for Climate Integrity, which backs the lawsuits against the industry. “If you don’t have much of an argument, you attack the judges.”
The climate liability lawsuits claim that oil and gas companies should be held financially accountable for misleading the public about the dangers of burning fossil fuels, violating state consumer laws and hastening global warming.
Oil industry attorneys have argued that the lawsuits are a distraction and will do little to address climate change. They have attempted to move the cases to federal court, where companies believe they are more likely to prevail.
Those claims have largely failed. After securing a preliminary win on the jurisdictional question in the Supreme Court in 2021, oil companies turned back to the justices last year to ask that the cases be thrown out. The high court in April declined to get involved, clearing the way for the cases to move ahead before state judges.
The lawsuits still have a long way to go, but if they are successful, the challenges could force the oil industry — like tobacco and opioid manufacturers before it — to pay hundreds of billions of dollars for harming the public.
‘Prejudging the merits’
Two months after the Supreme Court declined the oil industry’s request to stop the climate liability lawsuits, attorneys for Chevron Corp., Exxon Mobil Corp. and others involved in Rhode Island’s case asked state Superior Court Judge William Carnes Jr. to revise his April 28 ruling allowing the state to investigate oil industry operations.
The companies in particular had taken issue with Carnes’ use of a November 2022 Associated Press story about climate change. The judge cited the article and wrote that he is “compelled by the fact that climate change was recently on the world stage at the recent United Nations Climate Change Conference.”
Carnes also cited a second Associated Press article that discussed smaller countries’ requests for oil companies to rectify the harm the nations have suffered as a result of the industry’s role in climate change.
The judge compared Rhode Island — the smallest state in the country by area — to the small nations, writing that even if the companies’ contributions to global warming were minimal, the “consequences Rhode Island has borne have been significant.”
Lawyers for Chevron, Exxon and other oil companies argued that including material outside the court record — such as the Associated Press articles Carnes cited — “could be seen as prejudging the merits of the case.” The companies said they “raise these serious concerns reluctantly.”
They said the judge should revise his ruling to “correct the appearance of bias by confirming that [Carnes] has not prejudged this case.”
Carnes in an order late last month suggested he would not revise the decision, though he has cautioned that he does not intend to allow Rhode Island to engage in a “fishing expedition” as it conducts discovery in the case.
Attorneys for Rhode Island, which in 2018 became the first state in the country to sue the oil industry for compensation for climate change, called the companies’ allegations of judicial bias “groundless.” The state added that it’s “common and proper for courts to use extra-record materials to provide background context to a lawsuit.”
The state argued that Carnes had sought to cast the lawsuit “within a broader conversation occurring at the United Nations Climate Change Conference” and that nothing in his decision suggested he had prejudged the case.
Rhode Island said Carnes “made the simple, obvious, and uncontestable observation that both the state and several small nations blame oil companies for certain climate-related injuries.”
‘Grasping at straws’
The legal wrangling in Rhode Island’s case comes as a conservative group has questioned the impartiality of a Republican-appointed Hawaii state judge in a separate liability lawsuit.
Energy Policy Advocates has launched a media campaign raising concerns about Hawaii Supreme Court Chief Justice Mark Recktenwald — who is hearing the city and county of Honolulu’s lawsuit against oil and gas companies — because of his involvement with the Environmental Law Institute, a Washington-based nonprofit that runs seminars for lawyers and judges.
On its website, Energy Policy Advocates has characterized the institute as showcasing attorneys and groups that support the climate liability lawsuits, while “dissenting voices skeptical of the plaintiffs/ claims never feature at such events.”
Though industry lawyers have not raised such claims in Honolulu’s lawsuit, several conservative media outlets have voiced similar concerns, with the Daily Caller dubbing the Environmental Law Institute a “D.C-based environmental group that has close ties to the plaintiff’s attorneys.” Other outlets, such as Fox News, have charged that the institute “boasts numerous connections” to Sher Edling LLP, the California-based law firm that is representing Honolulu in the climate case.
The media reports have also highlighted Sher Edling and the Environmental Law Institute’s links to Michael Burger, executive director of Columbia University Law School’s Sabin Center for Climate Change Law, and Ann Carlson, whose nomination to lead the National Highway Traffic Safety Administration was recently withdrawn by the Biden administration. Among other criticisms, Republicans and industry groups had accused Carlson of helping recruit municipalities to file climate liability lawsuits.
Avi Soifer, a law professor and former dean at the University of Hawaii, said Energy Policy Advocates is “grasping at straws” by questioning Recktenwald’s credibility.
The oil and gas industry is also represented in the Environmental Law Institute’s leadership ranks. The institute’s board of directors includes executives from BP PLC and Shell PLC, which have been named in several of the climate liability lawsuits, along with attorneys from law firms that represent oil and gas companies. Board members include Raymond Ludwiszewski, a partner with Gibson, Dunn & Crutcher LLP, a firm that represents Chevron, a defendant in most of the climate liability lawsuits.
Scott Janoe, a partner with the law firm Baker Botts LLP — which represents Sunoco LP and its subsidiary, Aloha Petroleum Ltd., in the Honolulu case — is a member of the Environmental Law Institute’s Leadership Council, which backs the group financially. Another Baker Botts partner, Alexandra Dunn, is also a member of the leadership council. Dunn led EPA’s chemicals office during the Trump administration.
Dunn, Janoe and Ludwiszewski did not respond to requests for comment on this story.
Judges routinely participate in training programs focused on law, policy and science, and oil companies involved in the Honolulu case did not echo Energy Policy Advocates’ claims in court — even after Recktenwald offered both sides an opportunity to object.
Energy Policy Advocates said Recktenwald disclosed his appearances at Environmental Law Institute events only after the group filed several public records requests with the court. Energy Policy Advocates is not directly involved in the litigation.
In his disclosure, Recktenwald noted that he would be speaking at a June Environmental Law Institute seminar, “Environment, Energy and Natural Resource Disputes: The Use of Special Masters in Resolving Complex Litigation.” He told the parties they could raise concerns about his participation by May 19.
Neither side objected.
Soifer noted that not only had Recktenwald disclosed the judicial education he’s participated in, he also included slides from his presentation.
“If he has asked the parties and they haven’t raised an issue, what more do you want?” Soifer said.
No ‘whiff of bias’
Energy Policy Advocates’ ties to the oil and gas industry are unclear. The group’s tax-exempt status — which provides information about how it raises and spends money — was revoked in 2021 because it had failed to file paperwork for three years.
Its leadership team includes Matthew Hardin, who is listed as an officer for the conservative group Government Accountability & Oversight, which has been led by Chris Horner, a former member of Trump’s EPA landing team. The group has financial ties to the fossil fuel industry: Bankruptcy records filed by coal giant Murray Energy Corp. in 2019 showed a $300,000 contribution to Government Accountability & Oversight.
Horner, who represents Energy Policy Advocates on public records matters, said he could not speak to the group’s financing. He said he would forward a request to Energy Policy Advocates, which did not respond.
Horner said it was “unfortunate” that parties in the Honolulu climate case did not take up Recktenwald’s call to raise concerns about his involvement with the Environmental Law Institute.
“I am afraid I do not see any shift among defendants to tackle the campaign to parade plaintiffs’ witnesses and amicus supporters before as many judges who might hear these cases,” he said.
Energy Policy Advocates, which has ties to a number of anti-climate policy groups, has filed numerous public records requests against attorneys general in the mostly Democratic states that are leading climate liability lawsuits. The group also filed a friend of the court brief at the Supreme Court in 2020, supporting the oil industry’s first plea for the justices to toss out the climate cases.
The group has also questioned the motives of the Environmental Law Institute’s Climate Judiciary Project, which was established in 2019 to help judges understand the emerging field of climate law. The group has accused the institute of launching the project after climate liability lawsuits against the industry were dismissed by federal judges in New York and California in 2018.
In a 2019 Environmental Law Institute publication, however, Scott Fulton, who was then serving as president of the institute, wrote that former Climate Central President Paul Hanle and former BP America official David van Hoogstraten raised the idea. They said at the time that the project was needed because judges “often feel insufficiently grounded in climate science.”
Sandra Nichols Thiam, who leads the institute’s Climate Judiciary Project, said the program is run in concert with established judicial education institutions. Those include the Federal Judicial Center, the education and research arm of the federal court system, which is chaired by Supreme Court Chief Justice John Roberts.
Judges, she added, routinely participate in programs about new legislation, emerging case law and other developments. And she said the scope of the Environmental Law Institute project extends well beyond the climate liability lawsuits to include regulatory and permitting cases, along with local planning lawsuits.
Thiam added that the project presents the “consensus, basic facts of climate science” — which she notes is not being contested by the oil industry in the liability lawsuits from Rhode Island, Honolulu and other local governments.
“The framework that we are working within is important for people to understand,” she said. “If we even appeared biased or if there was a whiff of bias, we wouldn’t be able to do what we’re doing.”
