Baltimore County’s law office wants to hire a legal firm to consider litigation against fossil fuels companies over climate change, which could mimic suits filed by Baltimore City, Anne Arundel County and other jurisdictions across the country.
But it will need the approval of the Baltimore County Council, and some members have concerns about the proposal.
A contract with the law firm Sher Edling was brought before the council for the first time Tuesday evening. It won’t be voted on by the body until at least its next meeting, which is Monday evening.
Sher Edling is litigating about 20 similar suits from cities and counties against oil and gas companies, alleging they should bear costs associated with climate change, in part because they hid information from the public about the harmful impacts of greenhouse gas emissions.
According to the council’s agenda, the contract with Sher Edling wouldn’t come at a cost to the county unless a favorable judgment is won. The firm would get 25% on the first $100 million of any settlement, plus 15% of the next $50 million, and 7.5% of any amount above $150 million.
The county also could opt against filing a suit after hiring Sher Edling, said County Attorney James Benjamin. But the county’s law department is interested in exploring its options, he said.
“It appears, based upon different reports that we’ve seen, that greenhouse gas emissions have had a significant adverse impact on the environment, including here in the county,” Benjamin said. “So for that reason, that would give the county standing to be able to bring a suit, should it elect to do so.”
Erica Palmisano, a spokesman for County Executive Johnny Olszewski Jr., said Sher Edling told the county that it wouldn’t charge if the county decides against litigation.
Councilman Todd Crandell, a Dundalk Republican, said Tuesday that he planned to vote against the contract with the firm.
“I’m going to ask a series of questions. And they’re rhetorical,” he told Benjamin, who presented the contract.
One by one, he asked whether a variety of county vehicles — from school buses to police cars — run on gas.
“Yes, they do,” Crandell said. “So I can’t fathom why we’re considering suing oil companies when we are a customer and we need their product to run county government.”
Crandell added the case “seems to me like a money grab.”
Sher Edling declined to comment on the council members’ concerns through spokesman John Lamson.
Sher Edling’s cases in Baltimore and elsewhere have been slowed by battles over whether they ought to be heard by federal or state courts. The fossil fuel companies have argued that climate change issues shouldn’t be resolved by a patchwork of state court rulings, but the counties and cities have argued their cases focus on localized impacts of climate change.
A procedural dispute over the Baltimore case, which was filed in 2018, rose to the U.S. Supreme Court in January 2021.
In their ruling, the justices required a lower court — which had ruled the case belongs in state court — consider some additional criteria at the behest of the fossil fuel companies. Even after doing so, the court decided once more that the case should be heard in state court. But the matter could go before the Supreme Court again following a petition from the fossil fuel companies.
During Tuesday’s council meeting in Baltimore County, Councilman Wade Kach, a Cockeysville Republican, agreed with Crandell, saying: “I don’t want to see a situation where you have a private law firm with the idea of: ‘Oh my gosh, we can get these huge legal fees by going every after every company, every producer of petroleum.’”
That is unfair, Kach argued, in part because governments bear some responsibility for not having sufficient standards in place to protect the environment.
During the discussion, Kach raised the example of a devastating underground gasoline leak, which took place at an Exxon station in Jacksonville, Maryland, in 2006. In that instance, more than 26,000 gallons of gas leached into the groundwater over a period of 37 days before it was reported to officials, contaminating wells that residents relied upon for water.
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But Kach argued the company followed the Maryland Department of the Environment’s cleanup protocols, questioning whether it should be sued by the county as part of a suit on climate change.
“Since Exxon followed all the directions from MDE, yet there’s a possibility that some people may show signs of illness in the future, would Exxon be a candidate for a suit?” Kach asked. “And if so, would it be based on just the fact that people may get ill in the future?”
In response, Benjamin said the county does not yet know which companies could be party to the suit.
“I just don’t understand — if a company adheres to every standard that is legally in place — how we could sue them,” Kach said.
The state sued Exxon over the contamination, which resulted in a $4 million fine for the company, plus a $1 million charge if it did not continue its cleanup efforts. The company maintained it informed officials about the contamination as soon as it was discovered.
Councilman Tom Quirk, an Oella Democrat, also expressed concerns about a potential climate change suit from the county, saying that polluting companies penalized by lawsuits often pass their costs on to consumers.
“I’m also not very inclined to jump on some of these ambulance-chasing type of legal strategies out there nationwide that I think often are more about feeding law firms as opposed to really doing good work — but I could be wrong,” he said.