Far-right fossil fuel allies have launched a stunning and unprecedented campaign pressuring the supreme court to shield fossil fuel companies from litigation that could cost them billions of dollars.
Some of the groups behind the campaign have ties to Leonard Leo, the architect of the rightwing takeover of the supreme court who helped select Trump’s supreme court nominees. Leo also appears to have ties to Chevron, one of the plaintiffs in the lawsuit.
“He’s really crafted the supreme court,” said Lisa Graves, executive director of the progressive watchdog group True North Research and an expert on Leonard Leo’s network.
Honolulu is one of 40 cities and states suing big oil for an alleged decades-long effort to sow doubt about the dangers of burning fossils. If successful, the case could force the defendants to pay for climate damages.
In October, the Hawaii supreme court ruled that the suit can go to trial. But oil companies petitioned the US supreme court in February to review the state court’s decision; they argued the cases should be thrown out because emissions are a federal issue that shouldn’t be tried in state courts.
Supreme court justices met on Thursday to consider whether or not to take up the fossil fuel companies’ request, and the justices could grant or reject the petition in the coming days.
If granted, the request could catalyze the dismissal of the wave of climate accountability lawsuits against big oil – a major win for the defendants seeking to limit their liability for the climate crisis. But it’s the kind of ask about which the supreme court would not normally offer its opinion, advocates and legal experts say.
“The court would probably not think this request is important, unless someone told them it was very important,” said Kert Davies, a director at the Center for Climate Integrity, which supports the litigation against big oil.
Some conservatives have been telling them exactly that.
“I have never, ever seen this kind of overt political campaign to influence the court like this,” said Patrick Parenteau, professor and senior climate policy fellow at Vermont Law School.
In recent weeks, conservatives have published opinion pieces in Bloomberg, the Hill, the Wall Street Journal and the National Review calling on the court to grant the petition.
“Honolulu is attempting to use the law of one state to dominate the others,” wrote Carrie Severino, president of the conservative dark money group JCN, formerly known as the Judicial Crisis Network, in the rightwing National Review.
JCN is a trade name for the Concord Fund, one of many non-profits led by Leo, the powerful far-right judicial activist who also co-chairs the rightwing legal advocacy group the Federalist Society. Justice Clarence Thomas once quipped that Leo was the third most powerful person in the world.
Asked about the influence campaign, Severino told the Guardian: “Liberal dark money groups … are freaking out because the supreme court is being asked to step in and correct the damage those dark money groups are doing with their massive campaign to subvert the law and the constitution with a radical climate agenda.”
Another Leo-tied non-profit, the Alliance for Consumers, has also been running social media ads making similar arguments, Rolling Stone reported this month. Leo has said he will attempt to use the non-profit to “institute a lot of legal and social change”.
In April, 20 Republican state attorneys general also filed “friend of the court” briefs asking the supreme court to grant the petition. Each of them are members of the Republican Attorneys General Association, to which Leo’s Concord Fund is a major contributor.
The opinion pieces in the Hill were authored by Donald Kochan, a professor at George Mason University law school, which in 2016 received a $30m donation brokered by Leo, E&E News noted.
George Mason University has also taken tens of millions of dollars from rightwing organizations cultivated by fossil fuel billionaire Charles Koch. A strategist at one Koch group said in 2022 that her organization was “partnering with organizations that can get the right cases to the supreme court”, the Guardian and Documented reported. The Koch network is also a longtime major funder to the Federalist Society, which Leo co-chairs.
Thousands of petitions are filed with the supreme court every year, each with only a small chance of being reviewed, E&E News noted.
Federal rules also say that the supreme court only has jurisdiction over final judgments, Parenteau said.
“There is no final judgment in the Honolulu case, period, full stop,” said Parenteau. “For the court to grant this petition, it would have to ignore or find some way around those clear procedural rules.”
Oil industry relationships
Some environmental advocates are wondering if another Leo-tied group, CRC Advisors, has been involved in the political campaign.
The emailed comment the Guardian obtained from Severino, the president of JCN, quoted above, was sent not by JCN itself, but by a senior account executive at CRC Advisors.
Leo is the founder and chair of the public relations firm, which reportedly works with high-profile rightwing clients including the Americans for Prosperity and the Competitive Enterprise Institute – both part of the Koch network, which has long worked to sow climate doubt.
In 2020, E&E News revealed another apparent CRC Advisors client: Chevron, which is one of the defendants in the Honolulu lawsuit and many other climate accountability cases. The firm mistakenly sent email to reporters ending with the tagline: “If you would rather not receive future communications from Chevron, let us know by clicking here.”
An archived webpage found by True North Research also shows that CRC listed the “second-largest integrated energy company in the US” as a client in 2019, saying that for the client, the agency “developed winning communications, media relations, crisis communications and social media strategies”.
The second largest US energy company that year was Chevron, noted Graves of True North Research.
CRC Advisors did not directly address the Guardian’s questions about its involvement with the campaign or its current relationship with Chevron.
Kert Davies said there is no direct evidence that Chevron was involved in the media push, but that the campaign has raised suspicions.
“This Honolulu case directly impacts Chevron as well as many other climate cases where Chevron is a defendant, so while we don’t yet know what corporate interests are behind the Alliance for Consumers pressure campaign, we keep following our noses,” he said.
Chevron did not respond to a request to comment.
Potential ‘backfiring’
The political campaign, said Graves, is a clear sign that the US judiciary has been “captured by Leonard Leo and his billionaire benefactors”.
“These lawsuits are important measures to address the serious harms being caused by the [fossil fuel] industry,” she said. “But … they have leveraged their resources in order to advance an agenda that does not allow for climate accountability.”
But Parenteau said that the public strategy could “backfire”, because John Roberts, the chief justice, appears to be “sincerely” concerned about the supreme court maintaining its integrity and reputation.
“I think the more that you politicize the petition, I think the more you’re going to see concern,” he said.
The justices have three options when it comes to the oil companies’ petition. If they grant the request – the worst possible outcome for the lawsuits’ supporters – the court will hear arguments in the fall. If the justices instead ask the solicitor general for an opinion, that would significantly delay the case.
They could also deny the petition outright, which would be a win for climate advocates, said Parenteau.
“It’s one to watch closely” he said.
Another climate lawsuit, filed by non-profit law firm Our Children’s Trust on behalf of a group of young people, will go to trial later this month.
