SAN FRANCISCO (Legal Newsline) – Two days after local officials in the Boulder, Colo., area filed a lawsuit that attempts to hold large energy companies liable for the alleged effects of global warming, the state’s top lawyer showed that she disagrees with their legal argument by coming out against similar lawsuits in California.
On April 19, Colorado Attorney General Cynthia Coffman joined 14 colleagues in a friend-of-the-court brief filed in the California litigation that finds fault with the idea of using public nuisance lawsuits to address climate change.
“Plaintiffs’ theory of liability involves nothing more specific than promoting the use of fossil fuels,” the brief says.
“As utility owners, power plant operators and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.”
For now, those political subdivisions are plaintiffs – and the newest are the city and county of Boulder and San Miguel County. Their lawsuit was filed April 17 by two environmental firms and a Denver environmental/personal injury lawyer.
According to the Boulder County website, private attorneys will charge up to a 20% contingency fee. The City of Boulder has not yet produced a copy of its contract with these attorneys. Legal Newsline requested it April 18.
The City of Boulder was tight-lipped in the months leading up to the lawsuit, saying only that the City Council had approved a plan to hire a Washington, D.C., firm on a pro bono basis.
“The private firms have agreed to be paid only if they win the case, in which case they would receive up to 20 percent of the award,” Boulder County’s website says.
The site also says “(m)ost of the legal work will come from attorneys” at EarthRights International and the Niskanen Center.
“These attorneys will be assisted by private law firms who will need to put in a substantial amount of work in order to win the case,” the site says.
Like the California cases, Boulder’s makes a claim under the public nuisance theory. Climate change has caused a nuisance in the Boulder area, and the plaintiffs have to mitigate its impacts, the suit alleges.
The states, led by Indiana, say that theory isn’t good enough. Federal judges should not be asked to establish emissions policy, the brief says.
Private lawyers in the California cases will be seeking up to 23.5% of any recovery.
“But the questions of global climate change and its effects – and the proper balance of regulatory and commercial activity – are political questions not suited for resolution by any court,” the states say.
“Indeed, such judicial resolution would trample Congress’ carefully calibrated process of cooperative federalism where States work in tandem with EPA to administer the federal Clean Air Act.”
Citing a 2011 U.S. Supreme Court decision in American Electric Power Co. v. Connecticut, the states say the Clean Air Act and other EPA regulations preempt common law claims, like public nuisance.
“We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants,” that decision says.
Should the California plaintiffs be successful, and the energy defendants – which include Exxon, Chevron and BP – are forced to spend several billion dollars on sea walls and other infrastructure projects, the rest of the country will be affected, violating the Commerce Clause, the brief says.
“Such a remedy could cost several billion dollars and seriously impact Defendants’ ability to provide energy to the rest of the country,” the states say.
“In effect, Plaintiffs would be imposing limitations on commerce that takes place wholly outside California’s borders.”
In addition to Indiana’s Curtis Hill and Colorado’s Coffman, these AGs joined in the brief: Oklahoma’s Mike Hunter, Alabama’s Steve Marshall, South Carolina’s Alan Wilson, Arkansas’ Leslie Rutledge, Texas’ Ken Paxton, Utah’s Sean Reyes, Georgia’s Christopher Carr, West Virginia’s Patrick Morrisey, Louisiana’s Jeff Landry, Wisconsin’s Brad Schimel, Nebraska’s Doug Peterson and Wyoming’s Peter Michael.
In the California litigation, a federal judge recently instructed the plaintiffs to amend their lawsuits following the realization that a memo they cited was mostly inconsequential to their claims.
Also, the California cities and counties face possible consequences for alleging near-certain, climate change-caused doom in their lawsuits while not disclosing those fears to possible investors in bond offerings.
“By asking a single federal judge to impose energy production penalties on defendant companies, each of which is presumably compliant with the regulations of each state in which it operates, Plaintiffs are attempting to export their preferred environmental policies and their corresponding economic effects to other states,” the states say.
“Allowing them to do so would be detrimental to state innovation and regional approaches that have prevailed through the political branches of government to date. California’s attempt to regulate out-of-state production of fossil fuels and by suing producers with common law cause of action implicates the constitutional doctrine against extraterritorial regulation.”
From Legal Newsline: Reach editor John O’Brien at email@example.com