Several justices noted concerns about litigation gamesmanship, saying companies could use a weak claim within the permissible avenues of appeal to smuggle claims that otherwise could not be reviewed into appeals courts. Victor M. Sher, a lawyer for Baltimore, echoed the point, saying that “you cannot use an appealable issue as a ticket for multi-issue appeals that are not allowed.”
Mr. Sher added that the tactic could be used in a “range of cases, including environmental regulation, opioids, subprime lending in financial institutions and others.”
Baltimore’s suit, initially filed in July 2018, argues that the companies’ “production, promotion and marketing of fossil fuel products, simultaneous concealment of the known hazards of those products, and their championing of anti-science campaigns” harmed the city. The lawsuit notes that the city is “is particularly vulnerable to sea level rise and flooding,” and that it has spent “significant funds” to plan for and to deal with global warming. It also cites the cost of health-related issues associated with climate change, including increased rates of hospitalization in summer.
Michael Martin, the pastor of the Stillmeadow Community Fellowship, a church in Southwest Baltimore, said that the effects of climate change on the city were increasingly clear. “We’re on a trajectory to more flooding, and worse flooding,” he said. The church served as a community hub after ruinous flooding in May 2018 buckled roads and put seven feet of water in the streets. And the floods keep coming.
As for Baltimore’s case, he said, “I think it’s bold, and I think it’s useful.” But he suggested that focusing on fossil fuel companies alone was shortsighted, because other factors like development were major contributors to flooding as well.
Justice Samuel A. Alito Jr. disqualified himself from the case, presumably because of a financial conflict. Environmental groups said Justice Amy Coney Barrett, whose father had worked for Shell Oil Co., one of the defendants, should also have recused herself, but she participated in Tuesday’s argument.