By Daniel Fisher | Mar 22, 2018


SAN FRANCISCO (Legal Newsline) - Five of the world’s largest oil and gas producers filed a motion to dismiss a climate change lawsuit against them by the cities of Oakland and San Francisco even as they prepared to deliver an unusual “tutorial” on climate science to the federal judge overseeing the case.

In a 45-page filing on Tuesday, Chevron, BP, ConocoPhillips, ExxonMobil and Royal Dutch Shell urged U.S. District Judge William Alsup to dismiss the lawsuit seeking billions of dollars to pay for costs associated with global warming. The oil companies argue the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit have repeatedly rejected similar lawsuits against oil companies, the auto industry and electric utilities because Congress has given authority to regulate CO2 emissions exclusively to the Environmental Protection Agency.

“This is not the first (or even the second or third) time a plaintiff has tried to plead global-warming related tort claims,” the oil companies said. “Federal common law does not provide relief here.”

Private plaintiff lawyers led by Seattle law firm Hagens Berman represent the California cities and largely engineered their legal strategy. They have tried to maneuver around troublesome precedents, including the Ninth Circuit’s 2009 decision Kivalina v. ExxonMobil dismissing a lawsuit by Eskimo villagers, by painting their case as a public nuisance lawsuit seeking money to remediate the damages caused by global warming.

That approach should fail, the oil companies say, because any damages are necessarily caused by CO2 emissions and only the EPA, acting under the authority of Congress, can determine a reasonable level of C02 emissions. The U.S. Supreme Court in its 2011 decision, AEP v. Connecticut, also held that finding a solution to global warming “is an undertaking for the political branches.”

Public nuisance lawsuits historically have provided a way for plaintiffs to shut down a business or activity that prevents citizens from availing themselves of public rights - such as to a quiet neighborhood or clean air. But by seeking only money to cover their own costs associated with global warming, the cities are abandoning the essential purpose of a nuisance claim, which is to abate the nuisance, said Richard Faulk, counsel with Davis Wright Tremaine and author of numerous articles on public-nuisance litigation.

“In fact what we have here is a typical tort lawsuit for damages,” Faulk said.

The plaintiffs are hoping to present evidence that the oil companies exacerbated the problem of global warming by funding research intended to mislead the public about the effects of greenhouse gases. It’s not clear how that fits in with their public nuisance theory, however. 

Evidence of fraud or superior knowledge is usually used to prove a company knowingly sold a defective product, but the cities aren’t making that claim. The oil companies say they can’t be held liable for selling a legal product whose production is encouraged by the federal government.

The defendants say the plaintiff cities arbitrarily selected five oil companies to pay for the global problem of human-induced climate change, when any solution would require far broader international participation. Late last year, the defendants filed a motion to bring Norway’s state-controlled oil company Statoil back into the case as part of a strategy to add a foreign policy element to the case.

A hearing on the motion to dismiss will probably be held in April. Meanwhile on Tuesday, the oil companies and plaintiff lawyers were scheduled to present a four-hour “tutorial” on climate science to help the judge better understand the evidence that would be presented in any trial. 

While rare, Judge Alsup has made similar requests for tutorials in other cases, including litigation over the status of “Dreamers,” illegal immigrants who were brought to the U.S. as children.

In a Feb. 27 notice, the judge asked the parties to prepare a two-part tutorial focusing first on “the history of scientific study of climate change” and the second on the “best science now available” on global warming, glacial melt, rising sea levels and coastal flooding. Each side will have an hour to present their views on each part of the tutorial.

Chevron’s attorneys, in a briefing with reporters, said they would rely on scientific reports by the Intergovernmental Panel on Climate Change, which has concluded that “human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history.”

“Chevron is neither going to overstate nor understate uncertainties on climate science,” said Avi Garbo, a partner with Gibson Dunn & Crutcher in Washington who was the EPA’s general counsel from 2013 to 2017. “We’re simply going to present the conclusions of the IPCC."

The judge had also provided eight questions to answer. Some are simple, like “what are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?” 

Others are more complex, such as what caused the various ice ages and the warming cycles after them, and how much global warming can be attributed to tailpipes, engine radiators and other sources heated by the combustion of fossil fuels. 

This probably reflects the judge’s concern, expressed earlier, that the plaintiffs are to get around earlier decisions in the Ninth Circuit and the U.S. Supreme Court rejecting lawsuits over the effects of burning fossil fuels by focusing on the sales and marketing of those fuels as a separate source of damages.

Judge Alsup had also asked this seemingly naïve question that could raise the issue of whether oil companies can be held liable for all the damages attributed to global warming:

“In grade school, many of us were taught that humans exhale CO2 but plants absorb CO2 and return oxygen to the air (keeping the carbon for fiber). Is this still valid? If so, why hasn’t plant life turned the higher levels of CO2 back into oxygen? Given the increase in human population on Earth (four billion), is human respiration a contributing factor to the buildup of CO2?”

The judge had also asked for materials put out by the Global Climate Coalition and Global Climate Science Communications Team, industry groups the plaintiffs accuse of running “campaigns to discredit climate science.” The judge had asked specifically for a February 1996 internal GCC presentation that said a doubling of CO2 levels over pre-industrial concentrations would occur by 2100 and cause a rate of warming higher than in the past 10,000 years.

The presentation allegedly said the “potentially irreversible” effects could include a “significant loss of life.” The oil companies, in their motion to dismiss, said that language was summarizing the findings in Intergovernmental Panel on Climate Change papers that also expressed “large uncertainties about warming estimates.

The judge had also requested a 1998 memo the plaintiffs described as outlining “an explicit strategy to invest millions of dollars to manufacture uncertainty on the issue of global warming.” That memo said “Victory will be achieved” when “average citizens `understand’ (recognize) uncertainties in climate science” and that uncertainty “becomes part of the `conventional wisdom.’”

Faulk, who was involved in public nuisance suits against lead paint manufacturers and previous climate cases, said this litigation is primarily designed to impose such heavy costs on an industry that it turns to Congress for a solution. The use of federal nuisance law itself is doomed under AEP, Kivalina and other decisions, he said.

“This isn’t litigation – it’s intimidation,” he said.

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British Petroleum Chevron U.S.A. Conoco Phillips Exxon Mobil Royal Dutch Shell U.S. District Court for the Northern District of California

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