Energy Marketers Win Important Strategic Victory In U.S. Supreme Court

On May 17, 2021, the United States Supreme Court issued its decision in BP v. Mayor and City Council of Baltimore, a climate change case in which EMA submitted an amicus brief in support of BP and the other major oil company defendants.

Although the case involved a procedural issue related to whether the case would proceed in a federal or state court, it is of significant importance in determining whether cities, like Baltimore, can ultimately prevail.

State courts, applying traditional state law causes of action, have allowed the cases to proceed to where they will ultimately be tried by a jury.

Federal courts, on the other hand, are considerably more likely to decide the cases under federal common law, which would warrant a dismissal of the cases before the huge potential liability and enormous costs of litigation leave the defendants with no alternative but to settle.

As one federal court of appeals recently stated in affirming the dismissal of a climate change case brought by the City of New York, the responsibility for global warming cannot be shifted to energy producers when “every single person who uses gas and electricity contributes to global warming.”

EMA got involved in the Baltimore case after local marketers were added to the list of (mostly major oil company) defendants as part of a strategy to defeat federal jurisdiction and keep the cases in local state courts.

The Supreme Court’s opinion could dampen the enthusiasm of coastal cities, like Baltimore, to continue to bring these cases against energy producers and marketers.

Although it dealt only with a procedural issue, the decision could also hasten the day when one of the cases proceeds to the Supreme Court for a substantive review and, very likely, a decision that the effects of global climate change are not the responsibility of the petroleum industry.

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