Justice, Brought To You By Big Oil

On Sept. 1, Texas is slated to open its new business courts, a brand-new legal system backed by Big Oil — and several of the court’s main judges have in the past represented fossil fuel companies as lawyers, The Lever has found.

The judges were hand-picked over the last two months by Texas Republican Gov. Greg Abbott, a major recipient of oil industry cash — and many can be quickly replaced if they hand down decisions he opposes, a judicial design that he championed.

The courts consist of 11 regional business courts and a new statewide court of appeals to hear appellate litigation, which are expected to have immediate impacts on environmental cases in the state. As Public Health Watch, an independent investigative news organization, reported last month, a suite of cases involving state environmental authorities will now be transferred from a generally liberal appeals court to the state’s new Fifteenth Court of Appeals, created to oversee the business courts.

There, these cases will be decided by a panel of conservative judges historically friendly to industry — particularly oil and gas interests, a powerful force in Texas.

“Greg Abbott created a boutique court for corporations where he, not the voters, gets to pick the judges,” said Adrian Shelley, the director of the Texas office at Public Citizen, a progressive advocacy organization. “It’s that simple.”

Big Oil In The Courtroom

The judge that Abbott selected to head the new appellate court, Scott Brister, has since 2009 worked at a law firm known for its specialty in fossil fuel litigation. While an attorney there, Brister, a Republican, led the defense of the oil company BP in litigation over the catastrophic Deepwater Horizon oil spill, one of the worst environmental disasters in history, which released more than 100 million gallons of oil into the Gulf of Mexico in 2010.

Before then, while serving on the Texas Supreme Court, Brister threw out a major guilty verdict against oil giant ExxonMobil for allegedly poisoning a town’s water supply. 

A jury originally awarded $7 million in damages to the plaintiffs in that case, but in 2003, Brister and his fellow justices claimed that the scientific evidence was not robust enough to support that illnesses contracted by the town’s residents were connected with Exxon’s pollution. 

The court reversed the verdict on the company’s appeal, and the plaintiffs received nothing.

The business court’s new judges also include Republican Scott K. Field who as attorney in 2009 represented Chevron in the company’s attempt to recoup $170,000 in pension payouts to a former employee. Field also worked for a litany of major businesses in Texas cases, as well as the U.S. Chamber of Commerce, the nation’s largest corporate lobbying group. 

Just weeks before the deadline for the courts to open their doors, on Aug. 2, Chevron announced it was moving its headquarters to Houston from San Ramon, California. It has received a warm welcome from the state’s political class so far.

“Texas is your true home,” Abbott wrote in a post on X, formerly Twitter, shortly after Chevron made the announcement about its move. “Drill baby drill.”

In an email, Field told The Lever “I don’t recall [the 2009 Chevron case],” but added in a subsequent interview that he was sympathetic to concerns about the backgrounds of judges on the bench.

“I understand people being concerned, because we live in a time where everyone assumes people are political by nature and are going to go a certain direction just because of who they might have represented in the past,” he said. “But really good lawyers don’t think that way… You give someone due process in court no matter who they are.”

After being elected in 2012 to Texas’ Third Court of Appeals, which handles many environmental cases, Field ruled in favor of developers accused of destroying protected sand dunes and in another case, against environmentalists who sued the state, requesting it consider regulating greenhouse gas emissions.

In 2018, Field lost his seat as part of a Democratic sweep of the appellate court — but now as part of the business court, he will once again preside over many environmental cases. Critics have claimed that Abbott is using the new courts to circumvent Democrat-controlled benches.

Field told The Lever that he didn’t believe the new appellate court would be a death knell for environmental cases. 

“I don’t think it should be any different,” Field said. “If you have judges with the right judicial philosophy, where they’re just applying the law as written, really, a judge’s personal views, or especially political views, should never come into play.”

All told, The Lever found at least five of Abbott’s 13 appointees to the business courts, including all three appointees to the appellate court, have worked on behalf of fossil fuel companies.

Others include April Farris, a Federalist Society member who defended a Texas natural gas pipeline company during her time in private practice with Houston law firm Yetter Coleman; Stacy Sharp, a San Antonio attorney who represented BP in the months after the Deepwater Horizon disaster; and Jerry Bullard, a lawyer who worked for a fossil fuel exploration company as an attorney in 2015.

Brister declined to comment. Farris, Bullard, and Sharp did not respond to requests for comment.

Abbott also appointed judges straight from his own administration. His former general counsel, Patrick K. Sweeten, and a former deputy attorney general in his administration, Grant Dorfman, will both now serve as business court judges.

A “Business-Friendly Culture”

Last year, Texas lawmakers — with Abbott’s direction — proposed the state create a new system of business courts to handle major corporate cases. Many states have such a legal system, which proponents say can ensure that judges with appropriate expertise oversee complex business cases. Delaware’s historically corporate-friendly Court of Chancery is just one example.

But Texas’ model is different from many other states’ business courts, experts say: The judges are appointed personally by the governor, with virtually no oversight from the legislative branch. And they only serve two-year terms — in contrast to 12-year terms in Delaware and six-year terms in Nevada — in theory making it easy for Abbott or a successor to quickly replace a judge who doesn’t rule in favor of his political interests. Abbott has been pushing for Texas to create such a system for years.

“The judge essentially doesn’t have the last say if who’s on the court can be quickly changed,” Anne Tucker, a professor at Georgia State University College of Law, told The Lever in February. “Particularly if there’s an unpopular — even if legally correct — outcome.”

In the words of one local corporate law firm, the courts were designed to “preserve Texas’ business friendly culture,” and major corporate actors seem to agree. In the wake of the courts’ rollout, SpaceX and Tesla founder Elon Musk announced he was reincorporating the rocket company in Texas; he has since said he is moving SpaceX’s headquarters there from California, as well as those of X, formerly Twitter.

SpaceX previously had been incorporated in the business-friendly state of Delaware — but Musk, frustrated by a Delaware business court decision in February that cost him a multibillion dollar compensation package, seemed to see an opportunity in the Lone Star State’s new legal system. 

Major oil and gas companies have followed his lead. Alongside Chevron’s recent move to the state, ExxonMobil, which is headquartered in Houston, has been trying to end its offshore operations in California. 

For the state’s oil interests, the new business court system marks a major win. Texas’ fossil fuel lobby was a key supporter of the courts during deliberations in the legislature in March 2023, alongside many other business interests. The Texas Oil & Gas Association, a lobbying group representing fossil fuel interests, advocated for the bill, and Energy Transfer, one of the biggest oil pipeline companies in the country, testified before lawmakers in favor of the legislation.

Now, come September, fossil fuel interests in Texas will have access to the legal system that they helped build. Once they open their doors, the courts are poised to start deciding major environmental cases in the state — particularly appellate cases that will quickly be transferred to the new Fifteenth Court of Appeals.

The new appellate court, in addition to presiding over cases appealed from the business courts, will now oversee most cases brought against the state of Texas, including state agencies responsible for issuing environmental permits. Unlike the business court judges, the judges appointed by the governor for the new appellate court will subsequently run for statewide election for six-year terms.

The makeup of the new appellate court, one national law firm noted in a recent report, is a “significant contrast with the all-Democratic Third Court of Appeals,” which previously heard many environmental cases in Texas. Those cases are now headed to a bench stacked with conservative judges.

One case, which was brought against state regulators by several environmental groups in 2022, is challenging a troubled Houston oil pipeline company’s plans to expand a shipping channel in southeastern Texas. The advocates warn that the project would “deeply impact” the estuaries the channel runs through and pollute the air of surrounding neighborhoods — and are trying to use the case to strike down a long-standing policy held by Texas state regulators that empowers polluters.

Another case, backed by the National Wildlife Federation, an environmental advocacy group, is attempting to prevent billions of gallons of publicly owned water in the Guadalupe River Basin from being put up for sale to private buyers. The environmentalists argued the state river authority’s plan to sell the water could cause vast environmental harm to the river, and a lower court judge agreed, revoking the permit for the sale. The appeal now heads to the new appellate court.

Finally, Abbott’s appointees on the Fifteenth Court of Appeals will also soon be considering a case that is trying to block ExxonMobil’s planned expansion of a chemical plant on Texas’ Gulf Coast. 

All the while, fossil fuel interests are continuing to give money to Abbott. The governor has raked in tens of millions of dollars from the oil and gas industry during his tenure, and has in turn granted big favors to fossil fuel interests.

“You can buy political influence in a very straightforward way in Texas,” said Shelley, the Public Citizen director.