The U.S. Supreme Court—which has a right-wing supermajority—asked Prelogar to weigh in again this past June and October. Her new filings have climate advocates hopeful that the justices will follow their previous path and let the cases against major polluters advance in state court.
"The Justice Department has affirmed again that communities deserve their day in court to put Big Oil companies on trial for their climate lies and the resulting harms," said Richard Wiles, president of the Center for Climate Integrity (CCI), in a statement. "Big Oil companies are desperate to avoid facing the evidence of their deception in a courtroom, but wanting to escape the consequences for your actions is not the same thing as having the law on your side."
"As the solicitor general makes clear, there is no legal basis for the Supreme Court to intervene in these cases."
In Honolulu's case—intended to make companies including BP, Chevron, ExxonMobil, and Shell pay for local climate damages—the Hawaii Supreme Court rejected the fossil fuel industry's argument that "state law claims alleging the deceptive marketing of fossil fuel products were either governed by the federal common law of transboundary air pollution or preempted by the Clean Air Act."
Prelogar made the case that the country's highest tribunal "does not have jurisdiction to review the Hawaii Supreme Court's interlocutory decision" that allowed Honolulu's suit to proceed, "and even if it did, further review at this time would be unwarranted."
For the other case—which involves 19 state attorneys general trying to stop climate deception suits in California, Connecticut, Minnesota, New Jersey, and Rhode Island—Prelogar wrote that "there is no merit to the contention that the federal common law of transboundary air pollution governs (and therefore precludes) the defendant states' claims."
The solicitor general also argued that the attorneys general working on behalf of Big Oil lack standing; "the only interests directly at stake are the interests of private energy companies," not the citizens of each state; and "the very suits that the complaint seeks to enjoin are better forums for resolving the issues raised."
Alyssa Johl, vice president of legal and general counsel for CCI, said that "as the solicitor general makes clear, there is no legal basis for the Supreme Court to intervene in these cases. State and local governments are seeking to hold corporations accountable for lying about their harmful products, and state courts have the authority to hear those claims. The justices should reject these meritless requests and allow communities to have their day in court to hold Big Oil accountable."
Experts at the Union of Concerned Scientists (UCS) agreed. Delta Merner, lead scientist for the group's Science Hub for Climate Litigation, said the new briefs "represent an important step in the pursuit of climate accountability" and "reaffirm that communities have the right to hold fossil fuel companies accountable for decades of misleading the public about the harms associated with their products."
"Research has shown how fossil fuel companies knowingly concealed the dangers of their products while misleading the public—a pattern of misconduct that contributed directly to today's climate crisis," she noted. "These cases seek to give communities the chance to present this evidence in court, shining a light on the broader impacts of corporate disinformation campaigns."
"We applaud the Biden administration's continued support for these lawsuits and urge the incoming Trump administration to continue following science and clear legal arguments."
Kathy Mulvey, director of the climate accountability campaign at UCS, stressed that "communities like Honolulu are bearing the financial burden of addressing climate damages, using public dollars to remediate harms caused by decades of deception by fossil fuel companies."
"A core principle of accountability is timely access to justice through the courts. Honolulu and other communities have already waited years to present their evidence and argue their claims," she added. "We applaud the Biden administration's continued support for these lawsuits and urge the incoming Trump administration to continue following science and clear legal arguments."
Honolulu's suit is just one of dozens that state and local governments have filed against the fossil fuel industry—and Prelogar's brief last year notably represented a departure from the first Trump administration's support for Big Oil. Her new briefs come as the nation prepares for President-elect Donald Trump to return to the White House next month, with a Republican-controlled Congress.
Shortly after the GOP electoral victories last month, Emily Sanders a senior reporter for the CCI project ExxonKnews, spoke with multiple legal experts who framed the courts as key to Big Oil accountability with Trump and Republican lawmakers in power.
"It's not a stretch to say the message coming from the federal executive branch writ large and large numbers of Congress is going to be climate denial and misrepresentations," said Pat Parenteau, an environmental law professor and senior fellow at Vermont Law School. "So these cases and these jury verdicts are going to be even more important to correct the record to the extent you can."
