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Six urgent questions TikTok’s CEO needs to answer for US lawmakers
TikTok’s chief executive, Shou Zi Chew, will be questioned by lawmakers in Washington on Thursday with the app’s US future in severe doubt. The Biden administration wants TikTok’s Chinese owners to sell their stakes in the business or face a complete ban in the US. TikTok is owned by Beijing-based ByteDance.TikTok says such a move would not “solve the problem”. Under a plan dubbed Project Texas, which the White House now appears to have rejected, TikTok is moving its US user data to third party servers and is allowing its source code to be scrutinised by Oracle, a US tech firm which will also vet its app updates.For the White House and many US lawmakers, this does not go far enough to answer concerns about whether TikTok’s data, from more than 1 billion users, can be accessed by the Chinese state and whether TikTok’s recommendation algorithm could be manipulated by the security services in order to influence what users see.Here are some the questions that Chew, a Singaporean former Goldman Sachs banker, could be asked at the House energy and commerce committee hearing, which starts at 10am ET Thursday.Has the Chinese government ever sought to access TikTok user data?The regular answer to this question by TikTok is no. “TikTok has never shared, or received a request to share, US user data with the Chinese government. Nor would TikTok honor such a request,” Chew will say on Thursday, according to written testimony released by the committee. Indeed, the energy and commerce committee’s press release states that as well as asking Chew about TikTok’s privacy and data security practices, it will ask him about TikTok’s “relationship with the Chinese Communist Party”.Suspicions about the use of TikTok data, which critics say could be used to create profiles of people of interest like government employees, centre on Chinese security laws. These include the National Intelligence Law of 2017, which states that all organisations and citizens shall “support, assist and cooperate” with national intelligence efforts. The shooting down of a Chinese spy balloon off the east coast of the US in February has not helped. Trust was also severely damaged last year by revelations that ByteDance employees had used TikTok to spy on reporters.Will TikTok shed its Chinese ownership?TikTok says the Biden administration has asked its Chinese owners to sell their stakes in the business. TikTok is owned by ByteDance, which is located in Beijing and its ownership is divided as such: 60% by external investors including KKR, the US private equity firm; 20% by employees and 20% by its founders, Zhang Yiming and Liang Rubo, who carry stronger voting rights than the other shareholders.TikTok points to the fact that its US user data is stored on Oracle servers but the only option now appears to be a sale, which could raise around $50bn. However, the Chinese government could object to a deal that would put a prized tech asset in foreign hands, including TikTok’s successful recommendation algorithm. When Donald Trump tried to ban TikTok, and sell control of its US operation, he was stymied by legal action brought by the app and we can expect any renewed attempt at a ban to end up in court.Can the Toutiao app interfere with TikTok data flows?A former TikTok risk manager turned whistleblower has told congressional investigators that the Project Texas plan is deeply flawed. The former employee has shown the Washington Post a piece of code that shows TikTok could connect with systems linked to Toutiao, a Chinese news app owned by ByteDance. The whistleblower claims this could allow for interference in the flow of data from US users. TikTok says the Toutiao code does not link back to China.The whistleblower claims he was fired after warning Chew in a letter that senior TikTok managers were “intentionally lying” to US government officials about how the Project Texas controls had been tested and verified.Are US data controls much weaker than the company says they are?Another TikTok whistleblower has told the office of Republican senator Josh Hawley that TikTok’s access controls on US user data are much weaker than the company says. According to a report by Axios, the whistleblower allegations suggest that TikTok overstates its separation from ByteDance and uses Chinese software that could have backdoors. In a letter to the US treasury secretary Janet Yellen, Hawley details the whistleblower allegations including a claim that TikTok and ByteDance employees can switch between Chinese and US data at the click of a button.TikTok says the whistleblower allegations describes tools that are “primarily analytic tools” that don’t independently grant direct access to data. It adds that neither TikTok nor ByteDance engineers have access to US user data stored by Oracle.Can Project Texas answer lawmakers’ concerns about TikTok?The committee on foreign investment in the US, a multiagency task force that scrutinises foreign investments in American companies, is so unconvinced by the Texas proposals that it has demanded TikTok shed its Chinese ownership. But aside from taking the Biden administration to court, it is the only option that TikTok has. Alongside Oracle storing US user data, the Texas proposals include Oracle looking at TikTok’s source code and vetting its app updates, Chew will argue that Project Texas, and not a sale process, is the answer to lawmakers’ concerns.“The idea behind Project Texas is it won’t matter what the Chinese law or any law says, because we’re taking US user data and we’re putting it out of their reach,” Chew told the Wall Street Journal last week.What is TikTok doing to protect children from harmful content?The committee chair, Cathy McMorris Rodgers, says tech companies like TikTok use “harmful algorithms to exploit children for profit and expose them to dangerous content online”. So although data security will feature strongly in the hearing, expect questions about the protection of children online. TikTok has over 1 billion users worldwide and more than 100 million in the US, many of them under 18. According to the Center for Countering Digital Hate, TikTok’s recommendation algorithm pushes self-harm and eating disorder content to teenagers within minutes of them expressing interest in the topics.TikTok announced a “comprehensive” update to its content guidelines this month, including placing age restrictions on “mature content” such as videos of cosmetic surgery. It will also make content that is inappropriate for a “broader audience” ineligible for recommendation in its main For You feed. Expect Chew to refer to these guideline updates. More
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Biden urgeed an investigation into how guns are peddled to kids. Will it stop the ads?
Last year the Georgia-based gun manufacturer Daniel Defense tweeted an image of a young child with a rifle – about the same size as the child himself – in his lap. “Train up a child in the way he should go, and when he is old, he will not depart from it,” the caption read.The post came just eight days before an 18-year-old shot and killed 19 students and two teachers in Uvalde, Texas – using a weapon made by Daniel Defense.The tweet was swiftly decried by Democratic lawmakers and gun violence prevention groups, who argued that the ads were incendiary and promote violence among the nation’s youngest residents, for whom gun violence is now the leading cause of death.The ways that children are exposed to firearms through television and video games has been studied for decades. Online advertisements became a central part of this discussion last year, around the same time as the Daniel Defense tweet, when WEE1, a Chicago-based gunmaker used images of two cartoon skulls with pacifiers in their mouths and targets in their eyes to market their JR-15, a .22 rifle that is “geared toward smaller enthusiasts”, according to the company’s website.Now, Joe Biden is calling on the Federal Trade Commission (FTC) to examine the ways gun manufacturers market their weapons to Americans, especially children under 18.It’s one of the several executive actions the White House announced Tuesday aimed at expanding last year’s bipartisan Safer Communities act, a sweeping gun control law that strengthened background checks, helped states put in place red flag laws and boosted mental health programs. Here’s a look at what the order does – and doesn’t – do.How are gun companies advertising to kids?Advertisements for firearms are not as ubiquitous as ones for cars or snack foods, and those that do exist are mostly found in places such as gun magazines. Most of these ads are aimed at adults because people under 18 cannot legally buy a gun.Advertisements explicitly meant to appeal to children are rare, but invocations of militarism, patriotism and gender stereotypes that gun manufacturers have long leaned on are being aimed at younger audiences above the age of 18, according to a 2022 Senate joint economic committee report.Gun manufacturers and retailers are also relying on paid gun social media influencers to put their wares in front of new audiences, as a way to skirt tech conglomerates Meta and Google’s ban on ads by gun companies. In July, California became the first state in the US to ban gun manufacturers from marketing their weapons to minors.What’s in Biden’s executive order?Biden’s executive action will result in a report that analyzes the gun industry’s broader gun marketing practices. In his announcement of the order, Biden emphasized examining advertisements aimed at youth and marketing that incorporates military imagery and themes.Before the president tapped the FTC to look into gun ads, Democratic senator Ed Markey of Massachusetts introduced the protecting kids from gun marketing act, which would require the FTC to ban gun companies from advertising to kids. Under the bill, gun companies would be prohibited from using cartoon characters, memes, images of children holding guns, or firearms designed for children in advertising, and from offering branded merchandise to kids.“There are restrictions on cigarette and tobacco advertising, on alcohol advertising, and on cannabis advertising, yet the firearms industry is not subject to any specific restrictions or limitations on their marketing practices,” said a press release announcing the bill.Markey cited WEE1’s marketing for their JR-15 as an example of the type of ads the new policy would potentially prohibit.What comes next?Because Republicans currently control the House, and Democrats only have a slim majority in the Senate, any legislation restricting the way gunmakers advertise is unlikely to reach Biden’s desk. Markey’s proposed legislation does, however, put pressure on tech companies to keep gun ads off their platforms.It is unclear if a report resulting from Biden’s executive order, if published, will lead to new guidelines for the gun industry and their advertising practices. The FTC did not respond to requests for comments.Adhering to Biden’s request means the FTC would, for the first time, analyze and report the way gun manufacturers advertise. The agency currently has guidelines on marketing aimed at minors and closely monitors online ads for privacy violations. However, the agency does not have any explicit guardrails to inform the ways gunmakers and adjacent companies and organizations, including youth shooting sport programs, market to young audiences. More
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Why did the $212bn tech-lender Silicon Valley bank abruptly collapse?
The collapse of Silicon Valley Bank continues to reverberate, hitting bank stocks, revealing hidden stresses, knocking on to Credit Suisse, and setting off a political blame-game.Why the $212bn tech-lender abruptly collapsed, triggering the most significant financial crisis since 2008, has no single answer. Was it, as some argue, the result of Trump-era regulation rollbacks, risk mismanagement at the bank, sharp interest rate rises after a decade of ultra-low borrowing costs, or perhaps a combination of all three?Federal investigations have begun and lawsuits have been filed and no doubt new issues at the bank will emerge. But for now, here are the main reasons experts believed SVB failed.Trump rollbacksThe Vermont senator Bernie Sanders argues that the culprit was an “absurd” 2018 law, supported by Congress and signed by Donald Trump, that undid some of the credit requirements imposed under the Dodd-Frank banking legislation brought in after the 2008 banking crisis.Dodd-Frank required that banks with at least $50bn in assets – banks considered “systemically important” – undergo an annual Federal Reserve “stress test” and maintain certain levels of capital as well as plans for a living will if they failed.SVB’s chief executive, Greg Becker, argued before Congress in 2015 that the $50bn threshold (SVB held $40bn at the time) was unnecessary and his bank, like other “mid-sized” or regional banks, “does not present systemic risks”.Trump said the new bill went a “long way toward fixing” Dodd-Frank, which he called a “job-killer”. But the non-partisan Congressional Budget Office (CBO) warned before the bill passed that raising the threshold would “increase the likelihood that a large financial firm with assets of between $100bn and $250bn would fail.” Joe Biden says he wants Trump’s rollbacks reversed.SVB’s managementThe bank didn’t have a chief risk officer (CRO) for some of 2022, a situation that’s now being looked at by the Federal Reserve, according to reports. SVB’s previous CRO, Laura Izurieta, left the company in October but stopped performing the role in April. Another was appointed in December.Early SVB shareholder lawsuits are said to be looking at the key vacancy, especially as the board’s risk committee was meeting frequently before the bank collapsed.“It means perhaps management was hiding something or didn’t want to disclose something, or had disagreements over the risks it was taking,” said Reed Kathrein, a lawyer specializing in shareholder lawsuits, to Bloomberg.“This isn’t greed, necessarily, at the bank level,” said Danny Moses, an investor who predicted the 2008 financial crisis in the book and movie The Big Short. “It’s just bad risk management. It was complete and utter bad risk management on the part of SVB.”SVB and Signature, the second mid-size bank to fail last week, have also been accused of prioritizing social justice over financial management. The Republican House oversight committee chairman, James Comer, called SVB “one of the most woke banks”.The narrative fed into a larger conflict over ESG, or environmental, social and corporate governance-driven investing, that has become a target of conservatives.But the bank’s loans to community and environmental projects were not central to its collapse nor are its diversity, equity and inclusion (DEI) policies dissimilar to other banks. The argument also fails to take into account all the banks that existed in 2008, before DEI or “woke” became a part of corporate or political discourse.Nevertheless the Florida governor, Ron DeSantis, continued on that theme, telling Fox News, that SVB was “so concerned with DEI and politics and all kinds of stuff. I think that really diverted from them focusing on their core mission.”Inflation and interest ratesSVB had benefited from from more than a decade of “zero money” interest rates as billions poured into the bank via tech venture capital. Looking for some kind of a return, it put the money into long-term US treasury bonds. But when interest rates started sharply rising last year, and depositors demanded higher returns, the bank was forced to sell some of those bonds at a loss. When news of that hit social media, tech investors panicked, triggering a classic bank run. From there, it took 36 hours for the second-biggest bank failure in US history to materialize.Before the collapses, investors had been expecting the Federal Reserve to raise interest rates by a quarter or half a percentage point when the governors meet next week. Now central bankers are in a bind: continue raising rates to tame inflation still running at 6% and risk another break in the financial system, or continue tightening money supply.The treasury secretary, Janet Yellen, gave a hint on Thursday when she told the Senate finance committee that “more work needs to be done” on inflation.What happens next?Financial jitters eased on Thursday after Wall Street rode to the rescue and propped up First Republic, another mid-sized bank whose customers were fleeing. But the respite may be brief.Goldman Sachs has raised its prediction for a recession in the next year to 35%, partly as a result of lending drops by regional banks.In the meantime it seems clear that investigators are likely to uncover more problems at the banks as their inquiries continue. Those revelations may trigger more concerns from depositors and investors.On Thursday, the Republican house financial services chairman, Patrick McHenry, said people should hold off on assigning blame for the collapse of SVB and Signature while Congress and watchdogs investigate.“When people jump to these conclusions at this stage of the game – a week in on this really stressed moment for our banking system – it’s unhelpful and quite politically hackish,” McHenry told Bloomberg. More
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Two decades later, it feels as if the US is trying to forget the Iraq war ever happened | Stephen Wertheim
Two decades ago, the United States invaded Iraq, sending 130,000 US troops into a sovereign country to overthrow its government. Joe Biden, then chairman of the Senate foreign relations committee, voted to authorize the war, a decision he came to regret.Today another large, world-shaking invasion is under way. Biden, now the US president, recently traveled to Warsaw to rally international support for Ukraine’s fight to repel Russian aggression. After delivering his remarks, Biden declared: “The idea that over 100,000 forces would invade another country – since world war II, nothing like that has happened.”The president spoke these words on 22 February, within a month of the 20th anniversary of the US military’s opening strike on Baghdad. The White House did not attempt to correct Biden’s statement. Reporters do not appear to have asked about it. The country’s leading newspapers, the New York Times and Washington Post, ran stories that quoted Biden’s line. Neither of them questioned its veracity or noted its hypocrisy.Did the Iraq war even happen?While Washington forgets, much more of the world remembers. The flagrant illegality of bypassing the United Nations: this happened. The attempt to legitimize “pre-emption” (really prevention, a warrant to invade countries that have no plans to attack anyone): this mattered, including by handing the Russian president, Vladimir Putin, a pretext he has used. Worst of all was the destruction of the Iraqi state, causing the deaths of hundreds of thousands of Iraqis and nearly 4,600 US service members, and radiating instability and terrorism across the region.The Iraq war wasn’t the only law- or country-breaking military intervention launched by the US and its allies in recent decades. Kosovo, Afghanistan and Libya form a tragic pattern. But the Iraq war was the largest, loudest and proudest of America’s violent debacles, the most unwarranted, and the least possible to ignore. Or so it would seem. Biden’s statement is only the latest in a string of attempts by US leaders to forget the war and move on.Barack Obama, who came into the White House vowing to end the “mindset” that brought America into Iraq, decided that ending the war was good enough. “Now, it’s time to turn the page,” he said upon ordering the withdrawal of US forces from the country in 2011. Three years later, he sent troops back to Iraq to fight the Islamic State, which had risen out of the chaos of the invasion and civil war. It fell to Donald Trump to harness public outrage over not only the war but also the refusal of elites to hold themselves accountable and make policy changes commensurate with the scale of the disaster.Tempting though it is to look forward, not backward, the two are not mutually exclusive. And it might not be possible to reach a better future without understanding and appreciating why past attempts failed.Ukrainians are now paying part of the price for western misdeeds. Russia’s invasion was an act of blatant aggression. Moscow violated the UN charter and seeks to annex territory as part of an explicitly imperial project (in this respect unlike America’s war in Iraq). Few people outside Russia have genuine enthusiasm for Putin’s effort. Yet, much of the world sees the conflict as a proxy war between Russia and the west rather than a fight for sovereignty and freedom.According to the Economist Intelligence Unit, approximately 58% of the world’s population (excluding the two direct belligerents) lives in countries that are either neutral toward the war or lean toward Russia’s side. Over the past year, support for the west’s position has shrunk rather than grown: a handful of countries initially critical of Russia have shifted toward neutrality. Just last month, 39 countries did not support a UN resolution demanding that Russia withdraw its forces from Ukraine. Those that took a neutral stance, including China and India, represented an estimated 62% of the population of the global south.Russia has not become the international pariah that western leaders claim it to be. Its economy has mostly weathered international sanctions, in part because the only countries willing to impose them are wealthy strategic partners of the US.In this context, the White House should think about the message that Biden sent the world when he acted as though the war in Iraq never happened. When the US commits aggression, he implied, America’s misdeeds do not count. Or perhaps, in saying that “since world war II, nothing like that has happened”, Biden was thinking only of Europe but neglected to say so – in which case he treated the west’s history as synonymous with the world’s, effacing the experience of most of humanity. Either way, Biden conveyed that support for Ukraine is mere power politics, not a principled cause in which all countries have a stake.Hypocrisy alone is not the problem. Hypocrisy is all around us. What matters is whether we are working to build a better world.When Biden memory-holes the obvious, he is not doing so. He is perpetuating the hegemonic project that brought the US into Iraq in the first place. He sends a similar message when he routinely frames the Ukraine war as a struggle of democracy against autocracy – as though countries deserve support against an unprovoked invasion only if the nature of their government meets with Washington’s approval.Countries outside the west have an interest in defending the principle that sovereignty should be respected. They have no interest in defending the principle that sovereignty is conditional. If Washington still claims the right to judge who is sovereign, then has it really renounced the right invade Iraq after all?The US should admit past errors frankly and demonstrate, through words and deeds, that it has learned difficult lessons. No time is too late to build a better world. But even as the US takes the right side of the latest war, it is far from clear what lessons it has learned.
Stephen Wertheim is a senior fellow in the American Statecraft Program at the Carnegie Endowment for International Peace and a visiting lecturer at Yale Law School and Catholic University. He is the author of Tomorrow, the World: The Birth of US Global Supremacy More - in US Politics
The TikTok wars – why the US and China are feuding over the app
TikTok is once again fending off claims that its Chinese parent company, ByteDance, would share user data from its popular video-sharing app with the Chinese government, or push propaganda and misinformation on its behalf.China’s foreign ministry on Wednesday accused the US itself of spreading disinformation about TikTok’s potential security risks following a report in the Wall Street Journal that the committee on foreign investment in the US – part of the treasury department – was threatening a US ban on the app unless its Chinese owners divest their stake.So are the data security risks real? And should users be worried that the TikTok app will be wiped off their phones?Here’s what to know:What are the concerns about TikTok?Both the FBI and the Federal Communications Commission have warned that ByteDance could share TikTok user data – such as browsing history, location and biometric identifiers – with China’s authoritarian government.A law implemented by China in 2017 requires companies to give the government any personal data relevant to the country’s national security. There’s no evidence that TikTok has turned over such data, but fears abound due to the vast amount of user data it, like other social media companies, collects.Concerns around TikTok were heightened in December when ByteDance said it fired four employees who accessed data on two journalists from BuzzFeed News and the Financial Times while attempting to track down the source of a leaked report about the company. Just last week, the director of the FBI, Christopher Wray, told the Senate intelligence committee that TikTok “screams” of national security concerns and that China could also manipulate the algorithm to perpetuate misinformation.“This is a tool that is ultimately within the control of the Chinese government, and to me, it screams out with national security concerns,” Wray said.How is the US responding?White House national security council spokesperson John Kirby declined to comment when asked on Thursday to address the Chinese foreign ministry’s comments about TikTok, citing the review being conducted by the committee on foreign investment.Kirby also could not confirm that the administration sent TikTok a letter warning that the US government may ban the application if its Chinese owners don’t sell its stake but added, “we have legitimate national security concerns with respect to data integrity that we need to observe.”In 2020, then president Donald Trump and his administration sought to force ByteDance to sell off its US assets and ban TikTok from app stores. Courts blocked the effort, and President Joe Biden rescinded Trump’s orders but directed an in-depth study of the issue. A planned sale of TikTok’s US assets was also shelved as the Biden administration negotiated a deal with the app that would address some of the national security concerns.In Congress, US senators Richard Blumenthal and Jerry Moran, a Democrat and a Republican, respectively, wrote a letter in February to the treasury secretary, Janet Yellen, urging the committee on foreign investment panel, which she chairs, to “swiftly conclude its investigation and impose strict structural restrictions” between TikTok’s US operations and ByteDance, including potentially separating the companies.At the same time, lawmakers have introduced measures that would expand the Biden administration’s authority to enact a national ban on TikTok. The White House has already backed a Senate proposal that has bipartisan support.How has TikTok already been restricted?On Thursday, British authorities said they are banning TikTok on government-issued phones on security grounds, after similar moves by the EU’s executive branch, which temporarily banned TikTok from employee phones. Denmark and Canada have also announced efforts to block the app on government-issued phones.Last month, the White House said it would give US federal agencies 30 days to delete TikTok from all government-issued mobile devices. Congress, the US armed forces and more than half of US states had already banned the app on official devices.What does TikTok say?TikTok spokesperson Maureen Shanahan said the company was already answering security concerns through “transparent, US-based protection of US user data and systems, with robust third-party monitoring, vetting, and verification”.In June, TikTok said it would route all data from US users to servers controlled by Oracle, the Silicon Valley company it chose as its US tech partner in 2020 in an effort to avoid a nationwide ban. But it is storing backups of the data in its own servers in the US and Singapore. The company said it expects to delete US user data from its own servers, but it has not provided a timeline as to when that would occur.TikTok CEO Shou Zi Chew is will testify next week before the House energy and commerce committee about the company’s privacy and data-security practices, as well as its relationship with the Chinese government. In the lead-up to the hearing, Chew has quietly met with several lawmakers – some of whom remain unmoved by their conversation with the 40-year-old executive.After convening with Chew in February, Senator Michael Bennet, a Democrat from Colorado who previously called on Apple and Google to remove TikTok from their app stores, said he remained “fundamentally concerned that TikTok, as a Chinese-owned company, is subject to dictates from the Chinese Communist party”.Meanwhile, TikTok’s parent company, ByteDance, has been trying to position itself as more of an international company – and less of a Chinese company that was founded in Beijing in 2012 by its current chief executive, Liang Rubo, and others.Theo Bertram, TikTok’s vice-president of policy in Europe, said in a tweet on Thursday that ByteDance “is not a Chinese company”. Bertram said its ownership consists of 60% global investors, 20% employees and 20% founders. Its leaders are based in cities such as Singapore, New York, Beijing and other metropolitan areas.Are the security risks legitimate?It depends on whom you ask.Some tech privacy advocates say that while the potential abuse of privacy by the Chinese government is concerning, other tech companies have data-harvesting business practices that also exploit user information.“If policymakers want to protect Americans from surveillance, they should advocate for a basic privacy law that bans all companies from collecting so much sensitive data about us in the first place, rather than engaging in what amounts to xenophobic showboating that does exactly nothing to protect anyone,” said Evan Greer, director of the nonprofit advocacy group Fight for the Future.Karim Farhat, a researcher with the Internet Governance Project at Georgia Tech, said a TikTok sale would be “completely irrelevant to any of the alleged ‘national security’ threats” and go against “every free market principle and norm” of the state department’s internet freedom principles.Others say there is legitimate reason for concern.People who use TikTok might think they’re not doing anything that would be of interest to a foreign government, but that’s not always the case, said Anton Dahbura, executive director of the Johns Hopkins University Information Security Institute. Important information about the US is not strictly limited to nuclear power plants or military facilities; it extends to other sectors, such as food processing, the finance industry and universities, Dahbura said.Is there precedence for banning tech companies?Last year, the US banned the sale of communications equipment made by Chinese companies Huawei and ZTE, citing risks to national security. But banning the sale of items could be more easily done than banning an app, which is accessed through the web.Such a move might also go to the courts on grounds that it could violate the first amendment as some civil liberties groups have argued. More
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Biden administration sides with climate lawsuit against fossil fuel companies
The US Department of Justice filed a legal brief Thursday in support of local governments in Colorado that are part of a growing wave of local and state governments pursuing climate litigation against fossil fuel companies.In the brief, the DoJ argued that the Colorado case against the Canadian energy giant Suncor should be heard in state court, which is considered more favourable than federal court for plaintiffs who are suing oil companies over climate change. ExxonMobile is also a defendant in the case.Experts say the DoJ brief is an action by the administration in support of climate litigation, fulfilling a campaign promise by President Joe Biden. “They’ve definitely come out on the side that the climate advocates wanted,” said Dan Farber, law professor at the University of California, Berkeley.State and local governments across the country have filed lawsuits in recent years alleging that energy giants, including Exxon, Chevron, Shell and BP, failed to warn the public about the harms of fossil fuels and engaged in deception or misrepresentation about their products, resulting in devastating climate emergencies in those jurisdictions. In court filings, fossil fuel companies have argued that media coverage of climate change extends back to the 1950s but local governments continued to promote and encourage production and use of oil and gas.Supporters of the wave of climate lawsuits have compared them to cases against Big Tobacco in the 1990s that resulted in settlements of more than $200bn against cigarette companies. If the lawsuits are successful, they could change how firms do business, compel companies to pay for climate adaptation, and reinforce banking industry concerns that fossil fuels are a risky investment.Since the first lawsuits were filed in California in 2017, oil companies have removed them to federal court, which they see as friendlier to their arguments. But the plaintiffs have maintained that the cases belong in state court.In 2018, local governments in Colorado sued fossil fuel companies seeking damages for the companies’ role in causing climate change. The local governments said they incurred heavy costs from worsening heat waves, wildfires, droughts and floods, and that ExxonMobil Corporation and Suncor Energy Inc. According to the US Energy Information Administration, Colorado has abundant fossil fuel reserves, and two operating petroleum refineries located in Denver – one of them operated by Suncor.The lawsuit claims the companies “knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.”The case made it up to the tenth circuit appeals court, which agreed with the plaintiffs that the case should be heard in state court. The supreme court, now dominated by conservative judges, will weigh in on that issue.To aid in that decision, the supreme court invited Solicitor General Elizabeth Prelogar to file a brief expressing the views of the United States government on whether the case belongs in federal court. Prelogar had the option to support the state court argument by the Colorado counties, which she did in a filing on Thursday.Asked whether a Colorado case should be removed to federal court, Prelogar argued that the petition should be denied. “Respondents brought this suit in state court, alleging only state-law claims,” she wrote. “Under the well-pleaded complaint rule, respondents’ claims do not present a federal question, and petitioners have identified no sound basis for recharacterizing those claims.”The attorney for Suncor Energy did not immediately respond to request for comment.Farber said the brief is “laser-focused” on the question of whether the cases should be in federal court, and does not make any broader arguments about the climate litigation.The sSupreme Court now has two options – it can either decline to hear the case, or it can take up the case. If it declines to hear the case, then the lower court decision stands, and the lawsuit goes back to state court – a win for the plaintiffs that would have a ripple effect on other climate litigation, and all the cases would be heard in state court, Farber said.If the supreme court decides to hear the case, oral arguments could happen in the fall and the court could issue a decision in 2024. In that scenario, all the climate cases before the courts would be on pause until the decision comes down, he said.“There could be some complicated issues about how to handle some of the individual cases, but I think basically the result would be that things would more or less stand still until the court either decides to hear this case or decides not to hear it,” Farber said.Richard Wiles, president for the Center for Climate Integrity, was delighted by the federal government’s brief. “We’re obviously very pleased with this decision,” he said over the phone. “The DoJ came down on the side of every other federal judge that has looked at this.” He said there is consensus in the courts and the legal community is that the cases belong in state court.As for the Biden administration, he said, “You can definitely say they made good on their promise to strategically support these cases.” More
