By Alexander C. Kaufman in The Huffington Post
On the campaign trail in 2019, Joe Biden said that fossil fuel executives should be held liable for climate change and those who refuse to take responsibility should be jailed. “We should be able to sue” oil and gas companies “just like we did the drug companies, just like we did with the tobacco companies,” he said in a February debate. And on his campaign website, Biden pledged to “strategically support ongoing plaintiff-driven climate litigation against polluters.”
Now just weeks away from inauguration, the president-elect is considering a corporate lawyer who has defended Royal Dutch Shell against climate liability lawsuits to serve as solicitor general, the administration’s top legal advocate who argues cases before the U.S. Supreme Court, according to two sources with knowledge of the process.
David Frederick, a partner at the Washington, D.C.-based law firm Kellogg, Hansen, Todd, Figel & Frederick, is considered a serious enough candidate for solicitor general that the group Demand Justice singled him out as someone it would oppose in a public letter last month.
Frederick served as a Clinton-era assistant to the solicitor general from 1996 to 2001 and appeared on the Obama administration’s short list for the top job in 2008.
The Biden transition team, which is expected to announce its Justice Department picks sometime after Tuesday’s closely watched Senate runoff elections in Georgia, did not respond to questions about Frederick’s candidacy.
Throughout his lengthy legal career, Frederick, 59, has notched notable progressive victories at the nation’s highest court, winning decisions in favor of Tyson Foods workers whose wages the meatpacking giant stiffed, against tobacco companies advertising light cigarettes as safer, and against a gas facility that British oil giant BP tried to build in Delaware waters.
But some progressive advocates say Frederick’s recent work defending Shell, in which he’s argued that lawsuits trying to hold oil companies liable for climate change have no legal grounds, should be disqualifying.
“Surely they can find an accomplished lawyer in this country that hasn’t made millions going to bat for the fossil fuel industry,” said Jesse Bragg, the media director at the Boston-based anti-corruption group Corporate Accountability. “Experience in the energy industry is not a prerequisite for solicitor general, and there are plenty of people who have extensive careers that don’t include defending oil companies.”
Reached by email, Frederick directed HuffPost to his law firm. The firm declined to comment.
The Equivalent Of Saying ‘Oh, Murder Is Not Illegal’
A flurry of litigation against oil giants began in 2015 after Inside Climate News and the Los Angeles Times revealed that Exxon Mobil Corp. had understood the science of global warming decades before the company started promoting misinformation denying that climate reality. Three years later, the Dutch publication De Correspondent unearthed documents showing that even after Shell’s own scientists warned that emissions from burning oil were trapping heat in the atmosphere, the corporation’s management team chose to emphasize the “scientific uncertainties” of global warming.
Five states ― Connecticut, Delaware, Massachusetts, Minnesota and Rhode Island ― and a number of cities ― including New York, Baltimore and Oakland, California ― have filed lawsuits since then, making the case that some of the biggest oil companies operating in the U.S. broke the law by hiding the reality of climate change.
“The industry had the science 30 years ago and knew what was going to happen but made no warning so that preemptive steps could have been taken,” Harold Koh, a professor of international law at Yale Law School who served as legal adviser to then-Secretary of State Hillary Clinton, told Inside Climate News. “The taxpayers have been bearing the cost for what they should have been warned of 30 years ago. The companies are now being called to account for their conduct and the damages from that conduct.”
In court filings in California and Rhode Island last year, Frederick argued that federal law prevents states from suing Shell and other oil companies over climate change. He contended that federal law also provides no remedies for damage due to global warming and that Shell could only face climate litigation in the Netherlands, where it is headquartered.
“It’s a very different exercise than defending a criminal defendant where the lawyer might say, ‘Sure, murder should be illegal, but my client didn’t do it,’” said Marco Simons, general counsel at the environmental legal nonprofit EarthRights International. “This is the equivalent of the lawyer starting out the case by saying, ‘Oh, murder is not illegal.’”
The pushback highlights the legal challenges in prosecuting Shell, a globe-spanning corporate empire valued at nearly $140 billion, for planetary harm on a scale that few, if any, lawmakers could have imagined when writing the environmental statutes currently on the books. Two of the biggest cases against rival Exxon Mobil, for example, take a narrower approach, arguing that the company violated state laws in New York and Massachusetts by not disclosing relevant information to investors and making deceptive advertising claims about the safety of burning fossil fuels.
Accused Of Selling ‘His Progressive Bona Fides’
Lawyers who have argued cases alongside Frederick say his record shows that he’s willing to take on the oil industry.
While representing the state of Delaware in the mid-2000s, he persuaded the Supreme Court to block BP’s bid to build a liquefied natural gas facility in Delaware waters on the grounds that it violated state laws protecting the coastline.
“He worked tirelessly to protect the Coastal Zone Act in Delaware, which is one of our treasured environmental laws,” said Max Walton, a partner at the Wilmington, Delaware-based law firm Connolly Gallagher who argued the case with Frederick. “I can’t think of a human being who works harder and smarter and more fair than David Frederick.”
In 2016, the Supreme Court ruled against Exxon Mobil in a case that Frederick argued on behalf of the state of New Hampshire, forcing the oil giant to pay a $236 million fine for contaminating groundwater.
“David Frederick is the most capable, pro-consumer Supreme Court litigator in the country, and has demonstrated his ability over more than 50 Supreme Court arguments,” Todd Webster, a former chief of staff to Sen. Chris Coons (D-Del.), told Politico last month. “He is literally the guy progressives turn to when their cases reach the Supreme Court, so that we win at that level.”
But progressive critics say it’s that record of winning smaller-scale victories against oil companies that made him appealing to a company like Shell.
“What Shell is purchasing in getting his time is a lawyer who is known to be a Democrat who had some good clients, and that provides a positive sheen to their cause,” said Jeff Hauser, director of the Center for Economic and Policy Research’s Revolving Door Project. “Frederick is selling to Shell the fact that he is a progressive, and there ought to be consequences for his progressive bona fides when he does that.”
Shell did not return a call requesting comment.
At Odds With The Future Vice President
Frederick’s arguments put him at odds with some of the top officials in the incoming Biden administration. Among those who signed legal briefs in favor of allowing Oakland’s case against five oil giants, including Shell, to move forward in the California courts were Vice President-elect Kamala Harris; Biden’s secretary of state pick, Antony Blinken; his future climate diplomat, John Kerry; his choice for climate czar, Gina McCarthy; and Xavier Becerra, the likely next secretary of health and human services.
Other potential names reportedly under consideration for solicitor general include Sherrilyn Ifill, director of the NAACP Legal and Educational Defense Fund; David Cole, national legal director of the American Civil Liberties Union; and Barbara Underwood, New York state’s solicitor general.
“There’s no lack for public interest and public service-experienced litigators,” Hauser said. “We don’t need to rotate between Republican Big Law and Democratic Big Law.”