Despite what you may have heard or seen coming from the mouths and social media accounts of elected officials who surely know better, climate change is no “hoax.” The effects of climate change are here and now for Baltimore City. They are severe, dangerous and expensive. With over 60 miles of waterfront, our city is at high risk from floods and inundation caused by sea level rise with the potential for dramatic damage to property, critical infrastructure, transportation systems and more.
Study after study by universities, government agencies and others all tell the same story: The impacts are getting worse and meeting their challenges is going to cost taxpayers billions. For example, a study by the University of Maryland’s Coastal Climate Program found that Baltimore will experience between 50 and 155 days of flooding by 2050. In April, the Office of the Maryland Comptroller reported that “Maryland experienced 85 extreme weather events between 1980 and 2024. According to NOAA, the total recovery costs for Maryland were between $10 billion to $20 billion. Some of these costs included property and infrastructure damage, crop loss, and loss of revenue to businesses. Maryland will not be immune from more disasters in the coming decades; the costs of recovery will grow in tandem.”
Shortly after I was sworn in as the city solicitor (Baltimore’s top lawyer), Baltimore City in 2018 filed a lawsuit against fossil fuel companies. The lawsuit asserts that deceiving consumers in Maryland about the climate-related dangers associated with their products — dangers of which the companies were well aware — prolonged the use of fossil fuels and exacerbated the dire climate-related impacts. The lawsuit is not about solving climate change or regulating greenhouse gas emissions. Rather, as the U.S. Court of Appeals for the Fourth Circuit said when it ruled that the case belongs where the city filed it, in state court, not federal court, it is about the fossil fuel industry’s “failure to warn, abetted by a sophisticated disinformation campaign.” Baltimore’s residents, businesses and taxpayers have the right to seek to recover for injuries caused by that type of corporate misconduct.
A venerable legal principle is that “the plaintiff is the master of his complaint.” As a plaintiff in the suit against fossil fuel purveyors, Baltimore limited its claims to long cognizable claims for money damages and other relief under settled state law. Regrettably, the lower court in the case, beguiled by the deft arguments of the lawyers for the fossil fuel defendants, dismissed the city’s claims before a trial could occur. The fossil fuel companies want the courts to believe they are being sued for their greenhouse gas emissions. They are not. They are being sued for their deception, and for failing to warn consumers about the climate dangers associated with their products. Now, the Supreme Court of Maryland has an opportunity to weigh in and protect the rights of Marylanders to go to court and seek recovery for that conduct. On Oct. 6, the state’s highest court will hear arguments from Baltimore in its appeal of the lower court decision.
Only two other state supreme courts, Colorado and Hawaii, have taken up the questions now before the Supreme Court of Maryland. They both got it right in determining that suits like Baltimore’s do “not seek to regulate emissions,” nor do they “seek damages for interstate emissions.” Instead, they concluded, a lawsuit like this assures the plaintiff’s “ability to use its police powers to protect its citizens from alleged deceptive marketing.”
Maryland law is clear on this. When corporations bring products to market, they have a duty to warn consumers about dangers they know to be associated with the use of those products and to behave honestly in the marketplace. The defendants’ misconduct at issue here is that they failed to meet that obligation. Now, the Supreme Court of Maryland has an opportunity to set things right. Baltimore City is entitled to present its claims to a jury.
Andre M. Davis is a former Baltimore city solicitor and served as a federal judge on the U.S. Court of Appeals for the Fourth Circuit and the U.S District Court for the District of Maryland.
