By Karen Savage, The Climate Docket. Originally published on The Climate Docket.
With oral arguments set for next week before the U.S. Supreme Court in a climate liability lawsuit against the country’s largest oil companies, Justice Amy Coney Barrett, whose father was a Shell attorney for nearly three decades, has still not said whether she will recuse herself.
“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,” Barrett wrote in her response to questions submitted by Sen. Sheldon Whitehouse as part of her nomination process.
As it stands now, Justice Samuel Alito, who owns stock in ConocoPhillips and Phillips 66, will recuse himself, leaving the court with a potential for a 4-4 split vote. A recusal by Coney Barrett would eliminate that possibility.
While the court’s decision involves a limited legal issue in Baltimore’s case against fossil fuel companies, it could decide the crucial point of whether all of the climate liability suits filed against the industry will be heard in state or federal court.
Coney Barrett’s potential conflict of interest stems from her father, Michael E. Coney, who in addition to working for Shell also held leadership positions with the American Petroleum Institute (API) for two decades. He served on its subcommittee of exploration and production law and twice served as its chairman. He was also chairman of the legal subcommittee of the API’s offshore operations committee and frequently reviewed and drafted comments on policies related to the Outer Continental Shelf (OCF).
The API is the nation’s largest and most powerful fossil fuel trade association. Nearly all of the companies named in Baltimore’s suit—including Shell—are API members.
Baltimore filed suit in Maryland state court in 2018 against ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies, alleging that they knew for decades that their products drive climate change but deliberately failed to inform the public about those risks. The city charged the companies with eight violations, including public nuisance, private nuisance, failure to warn and violations of Maryland’s consumer protection laws.
The Supreme Court’s ruling could determine the fate of Baltimore’s case, and the companies have asked it to apply its decision to many of the other climate change-related cases filed against them by municipalities across the country.
The high court is not expected to address the merits of the case, but has agreed to review a technical question involving the scope of appellate review in jurisdictional matters. The issue of jurisdiction—whether the cases will be heard in state court where they were filed or in federal court where the companies think they have a better chance of shaking them—has been hotly contested.
A win for Baltimore means the case—and others like it— will likely proceed in state court. If the court sides with the fossil fuel companies, it could send the case back to the Fourth Circuit for further review of the energy giants’ arguments for federal jurisdiction.
A split decision, which could result if one or three justices were to recuse leaving an even number to hear the case, would give the appellate court, which has already decided in Baltimore’s favor, the final say.
The companies have argued that because they operated with leases issued by the federal government, they were acting as “federal officers” and therefore the case belongs in federal court.
As it turns out, Barrett’s father may have worked on some of those lease agreements.
Between 1978 and 2007, part of Coney’s responsibilities for Shell included lease sales on the Outer Continental Shelf, (OCS), legal support of Shell’s expansion into the deep water OCS, the drafting and interpretation of shelf and deep water unit and joint operating agreements, and negotiations related to the oil giant’s drilling contracts.
“If confirmed, I will continue my present practice of using a recusal list to identify and avoid potential conflicts,” Barrett wrote on her Senate Judiciary Committee Questionnaire.
Barrett didn’t say whether Shell would remain on that list.
“She might say, ‘my new lists of conflicts at [the Supreme Court] doesn’t include Shell,’” said
Gabe Roth, executive director of Fix The Court, an organization that advocates for a more accountable and transparent judiciary.
The Supreme Court doesn’t require conflict lists to be made public, but it’s not unusual for a newly confirmed justice to revise their list, Roth explained.
For Barrett, updating the list so soon after her nomination process could raise questions.
“If you’re coming out and sending the Senate Judiciary Committee a list of your conflicts on which Shell is listed several times—in various combinations and permutations, seven different ways—then I think the American people are owed an explanation as to why Shell is no longer a conflict,” Roth said.
Federal Recusal Law
Under federal law, justices are required to recuse themselves if a reasonable person might question their impartiality or if they have a financial interest in the case.
Included in the latter is the provision that a judge must recuse if a “person within the third degree of relationship”—which would include a parent—is known “to have an interest that could be substantially affected by the outcome of the proceeding.”
It’s unclear what, if any, stake Barrett’s father, who left Shell in 2007, still has in the company. If ultimately found liable for its role in climate change, Shell could find itself on the hook for billions, if not trillions of dollars in damages, a financial jolt even for an oil company.
“With Alito, it’s very open and shut—he owns stocks and federal law says if you own stock you have to recuse,” Roth said.
Barrett’s situation is less clear-cut, according to Louis J. Virelli III, a law professor at Stetson University, who has written on the Supreme Court recusal process.
“I don’t think there’s any sort of a financial or other interest standard that would trigger recusal for Justice Barrett based on her father’s prior involvement with Shell or the API,” Virelli said, adding that even so, it would be easy to understand if she chose to recuse herself.
The interesting and more relevant question is whether a reasonable person might think Barrett is unable to be impartial because of her father’s relationship with the fossil fuel industry.
“It doesn’t mean that she can’t be, it means she could appear to not be,” Virelli said. “That is by definition very fact-specific, and it’s going to depend on the depth of her father’s involvement, her relationship with him and/or the industry—lots of things that are very difficult to characterize.”
Nine Irreplaceable Justices
The Constitution gives Congress the power to determine the composition of the Supreme Court.
“It is a nine-person court and they are non-replaceable,” Virelli said. “So another consideration that the justices have to take into account—and we can fight about whether or not they’re doing a good job of this—is, ‘what happens if I recuse myself and we end up with a tie vote’, or ‘what happens if four of my colleagues and I all recuse ourselves, and now we don’t have a quorum and we can’t decide the case at all.’”
The dilemma highlights the inadequacy of the current recusal statute, according to Virelli.
“We need to think of Supreme Court recusal outside the scope of the statute, and we need to think about this balance between the court being able to do its job and the ethical phenomenon of the justices participating,” Virelli said.
“With an appellate court judge who can be replaced, we would say you have a legal obligation to recuse because it doesn’t in any way shape or form affect the court’s ability to do its job. With the Supreme Court, it’s different—they cannot be replaced,” Virelli added.
Supreme Court recusal is not uncommon, Fix the Court says, with an average of 150-200 recusals among the nine justices every year.
The justices have recused themselves a combined total of 89 times this term, which began in October. Most involve cases the justice has heard or worked on prior to his or her confirmation.
In addition to the Baltimore case, Alito has recused eight other times this term due to stock ownership. Justice Alito, Chief Justice John Roberts and Justice Steven Breyer are the only justices who still own individual stock. Other reasons include cases in which the justice is a named party and Coney Barrett sat out cases in which she did not hear arguments or have time to review.
If Coney Barrett were to recuse herself from the Baltimore case, the court would be left with seven justices, a situation that is not unusual at this stage, but is less common once review is granted. Six justices are required to reach a quorum.
When justices do recuse themselves, they rarely share their reasoning.
“They don’t say much about recusal publicly and they never explain their decisions in writing—there’s been maybe three or four in explanations in the last 50 years,” Virelli said, adding that his sense is that the justices are diligent about recusing themselves.
With the number of climate-related cases rapidly growing, it’s increasingly likely that the Supreme Court will be asked to weigh in again in the future. Next time, the question could involve the meatier issues of climate change and attempts by municipalities to hold fossil fuel companies accountable for their decades-long campaigns of deception and for damages done by the use of their products.
“It brings into focus the need to really push hard on the justices to sell their individual stock,” Roth said.
“The idea that three of the justices continue to own stock and of those, one of the justices, Justice Alito, continues to own stock in fossil fuel companies, that means that at almost every turn, you’re only going to have eight justice deciding these major cases, and that’s less than ideal,” Roth said, adding that if the court were split, the judiciary would be left without a ruling.
Oral arguments are scheduled for January 19.