Three state AGs support climate change cases after 15 colleagues did the opposite

By Elizabeth Alt | May 9, 2018

SAN FRANCISCO (Legal Newsline) – California, New Jersey and Washington have filed a brief to support Oakland's and San Francisco’s suits claiming big oil companies need to be held responsible for their part in global warming.

The brief claims the 15 states opposing the suit are overreaching their arguments that “rest on authority of limited precedential value.” Oakland and San Francisco are two of a group of California counties and cities that have sued the energy sector over climate change. Boulder, Colo., and New York City have also filed suit.

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. They are represented by private lawyers working on a contingency fee - Oakland and San Francisco are paying 23.5% of any recovery to Hagens Berman.

The brief, which was filed on May 3 by the attorneys general of California, New Jersey and Washington, states that the only question before the U.S. District Court of the Northern District of California is if the defendant oil companies can be held liable for their actions “under the common law of public nuisance.” 

The brief states the lawsuits “do not present a non-justiciable political question” and asks the court to deny the defendants’ motion to dismiss.

In 2017, many California governments filed public nuisance claims against companies like ExxonMobil, BP, Chevron, ConocoPhillips and Shell over allegations the big oil companies knew the fossil fuels they produce caused global warming and did nothing to decrease it, “intentionally misleading consumers about climate science and the risks of global warming.”

The cities want to hold the companies liable for the global warming-driven sea level rise that allegedly will cause them to spend money to avoid impending disaster.

The oil companies have filed a motion to dismiss the lawsuit. On April 19, 15 states filed an amicus brief to support the motion to dismiss, stating that the cities have posed a political question regarding climate change that’s best suited for Congress, and that the cities’ claims are displaced by the Clean Air Act and other federal statutes that authorized the defendants’ actions.

The states supporting the motion to dismiss the lawsuits are Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming.

The brief to support the cities states that the defendants are using unpublished court opinions and do not consider “persuasive precedent on this issue.” The brief says that the dormant Commerce Clause does not apply to these cases because the cities are only seeking a local abatement fund that will not impose a limitation that would affect interstate commerce.

The brief also argues that the defendants and the states supporting the dismissal erroneously claim that there “are no manageable standards by which the court can assess the impacts of climate change on the cities” as the cities will be providing the court with evidence because their complaints contain scientific research on climate change and how the defendants have contributed to the climate change.

The brief says that the defendants have not cited any laws that authorize them to market fossil fuels “while intentionally concealing their knowledge about the harms from those fuels,” and notes that the Clean Air Act that they rely on in their arguments does not regulate “the overall production and marketing of fossil fuels” or “deceiving the public regarding the dangers of global warming and the benefits of fossil fuels.”

The AGs urging the court to dismiss the lawsuits say the cities' claims are inappropriate.

“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 15 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.”

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Organizations in this Story

California Attorney General Hagens Berman Sobol Shapiro, LLP New Jersey Attorney General's Office U.S. District Court for the Northern District of California Washington State Attorney General

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