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Barrett hears climate case against her father's ex-employer Shell

Barrett hears climate case against her father's ex-employer Shell
© Greg Nash

Amy Coney BarrettAmy Coney BarrettThe Jan. 6 case for ending the Senate filibuster Laurence Tribe: Justice Thomas is out of order on 2020 election McConnell backs Garland for attorney general MORE was among the justices who presided over a dispute Tuesday that pitted the city of Baltimore against some of the fossil fuel industry’s biggest players, despite her father’s longstanding ties to Shell Oil Company, one of the defendants in the case.

Barrett participated in the case even though as a lower court judge she recused herself from hearing cases involving Shell, her father’s former employer, in an apparent effort to avoid a possible conflict of interest. 

Although the case heard Tuesday turned on the narrow question of whether the dispute properly belongs in state or federal court, how that issue is resolved could have an enormous bearing on potential corporate liability for environmental degradation.

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The substance of the case involves allegations by Baltimore that multiple companies’ production and misleading marketing of fossil fuels has exacerbated climate change. Given the potentially high stakes for the industry where Barrett’s father spent most of his career, some say the justice should have recused herself.

“Justice Amy Coney Barrett is set to hear a case against Shell, her father’s employer for 29 years,” the government watchdog group Citizens for Responsibility and Ethics in Washington tweeted last week. “We need stronger ethics rules for judges.” 

The case is one of several lawsuits brought by states and cities against oil companies over climate change after reporting from InsideClimate News and the Los Angeles Times said Exxon Mobil Corporation had long known the effects of fossil fuel emissions.

The dispute before the court Tuesday arose after Baltimore sued the fossil fuel companies in 2018 for alleged violations of Maryland statutes prohibiting fraud, deception and related misconduct. In response, Shell and the other defendants — including British Petroleum, Exxon Mobil and Chevron — sought to move Baltimore’s lawsuit from a Maryland state court to federal court.

Critics say that such maneuvering, sometimes referred to as “forum shopping,” is a common practice by well-heeled corporate clients who believe they stand a better shot at winning in federal court, rather than state court.

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The fossil fuel companies, however, say the case belongs in federal court for two independent and legitimate reasons, one procedural and the other substantive. Their substantive claim is that a climate change lawsuit like Baltimore’s can only be resolved by federal law because the impact of carbon emissions is national in scope.

Kannon Shanmugam, an attorney for the fossil fuel companies, told the justices they could send the case back down to the lower courts for additional proceedings. Or, he said, the justices could use the case to declare that disputes over nationwide carbon emissions should be exclusively left up to federal judges to decide.

Barrett did not clearly signal a preference for either party. But she did appear to push back against granting the fossil fuel companies the full relief they're seeking, indicating that it would seem “fairly aggressive” to grant them a win on both procedural grounds as well as on their substantive claim.

The fossil fuel defendants urged the justices to resolve the federal law question in their favor in part because the issue is also being litigated in 19 other climate change lawsuits across the country.

Barrett’s decision not to recuse herself from the case, despite her father having spent much of his career as a lawyer for Shell, marked a shift in her approach as a lower court judge. Supreme Court justices, who have more leeway than lower court judges, are generally permitted to decide for themselves whether recusal is appropriate in a given case.

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During her confirmation hearing, Barrett was asked by Sen. Dianne FeinsteinDianne Emiel FeinsteinProgressive support builds for expanding lower courts Menendez reintroduces corporate diversity bill What exactly are uber-woke educators teaching our kids? MORE (D-Calif.), about why she had put four Shell entities on her list of lower-court recusals. In response, Barrett wrote, “My father worked at Shell Oil Company for many years, and while on the Seventh Circuit, in an abundance of caution, I have recused myself from cases involving those Shell entities with which he was involved.”

Gabe Roth, the executive director of the judiciary transparency group Fix the Court, said Barrett’s shifting approach to disputes involving Shell highlighted some of the inconsistencies in how judicial ethics are applied.

“To me, today's recusal question is less about whether Justice Barrett is biased in the case and more about how she decided that Shell went from being a conflict in September to not a conflict today,” he said, adding that nominees’ “anodyne” answers during confirmation proceedings often provide little insight into their true views on disqualification.

The justice also said during her confirmation hearing that she did not hold "firm views" on climate change and called the subject a "contentious matter of public debate" even though the vast majority of the scientific community believes climate change is happening. 

Another justice, Samuel AlitoSamuel AlitoLaurence Tribe: Justice Thomas is out of order on 2020 election Supreme Court won't review Pennsylvania GOP election lawsuits A powerful tool to take on the Supreme Court — if Democrats use it right MORE, did recuse himself from the case. Alito holds stock in ConocoPhillips and Phillips 66, both of which were also defendants, according to a 2019 financial disclosure report

Updated at 4:12 p.m.