SAN FRANCISCO (Legal Newsline) - Chevron, in a renewed motion to dismiss climate change litigation against it filed by the cities of San Francisco and Oakland, described the case as a futile attempt to get around numerous prior court decisions preventing similar lawsuits over the sale of legal products.

The cities – represented by private attorneys who stand to collect a percentage of any money they win – claim Chevron and four other big international oil companies should pay billions of dollars into a fund to compensate them for the expected effects of global warming. But numerous courts, including U.S. Supreme Court and the Ninth Circuit Court of Appeals, which controls the court where this case is being heard, have rejected such suits as covering conduct regulated by the federal Environmental Protection Agency.

Chevron filed its latest 43-page motion April 19, at the same time as 15 state attorneys general filed a friend-of-the-court brief urging U.S. District Judge William Alsup to dismiss the case because it raises “political questions not suited for resolution by any court.” Royal Dutch Shell, BP, Amoco and ExxonMobil also filed motions to dismiss, raising numerous objections, including a lack of jurisdiction over their parent companies.

The judge ruled in February that the cities’ claims belong in federal, not state, court, even though the cities have tried to plead their case under the state law of nuisance in California. Because climate change is a global problem involving thousands or millions of actors, it requires a universal solution, the judge ruled in February.

“A patchwork of fifty different answers to the same fundamental global issue would be unworkable,” the judge wrote. In that order, the judge said it wasn’t clear whether any federal court could resolve the claims.

Chevron’s motion to dismiss included responses to several questions posed by Alsup in a March 27 order, including whether any companies had previously been held liable for creating a nuisance by selling legal products and whether the companies could be ordered to pay damages for engaging in lobbying and public relations efforts intended to question climate science.

Chevron cited Alsup’s order repeatedly in its latest motion, saying the plaintiff cities have failed to state a claim that can survive prior decisions rejecting such nuisance lawsuits over CO2 emissions. The plaintiff cities have tried to get around those rulings by suing the oil companies for producing oil and gas, not causing emissions themselves. The latter claim would be doomed by the U.S. Supreme Court’s 2011 decision AEP v. Connecticut, which held the EPA is in charge of regulating CO2 emissions.

But while no federal court has specifically ruled on whether the plaintiffs’ new approach will work, Chevron said, it is futile because the first step of the analysis would be whether CO2 emissions had caused their harm and that is controlled by AEP. The court can’t deliver the relief the plaintiffs are seeking anyway, Chevron said, because it has no jurisdiction over foreign oil producers and consumers of fossil fuels who are causing the majority of the problem.

“Even if this court were to issue a nationwide injunction prohibiting all fossil fuel production, such an order would not abate the alleged nuisance – though it would devastate the U.S. economy – because this Court has no power to enjoin global emissions,” Chevron said.

The judge also asked whether the companies can be sued for their lobbying and public relations efforts, specifically whether every company involved in hydrocarbon fuels would be equally liable under the plaintiffs’ theory if they “questioned the science of global warming or sponsored research intending to question it?” 

Chevron, like ExxonMobil and other defendant companies, said the First Amendment protects its rights to finance research and lobby the government to try and prevent regulation it opposes.

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