NEW YORK (Legal Newsline) – New York State's new attorney general, who recently took over when her predecessor resigned following an abuse scandal, has joined three Democratic colleagues in support for New York City’s climate change lawsuit.
Barbara Underwood, who had served as solicitor general before Eric Schneiderman resigned earlier this year, recently led a friend-of-the-court brief with three colleagues who don’t want to see New York City’s lawsuit dismissed. A hearing on the dismissal arguments made by large energy companies is scheduled for Wednesday.
The other attorneys general on the brief already filed similar arguments in climate change litigation initiated in California. They oppose a group of 15 Republican attorneys general asking judges to dismiss these lawsuits, which have also been filed in Colorado and Washington State.
Underwood is joined by California's Xavier Becerra, New Jersey’s Gurbir Grewal and Washington’s Robert Ferguson. The brief directly responds to the Republican brief, led by Indiana’s Curtis Hill.
“In any event, Indiana is simply wrong that there is any conflict between the City’s public nuisance claims and various cooperative-federalism programs,” Underwood’s office wrote.
Like officials in California and King County, Wash., New York City Mayor Bill de Blasio has hired lawyers from Hagens Berman on a contingency fee who stand to make a fortune if the cases are successful.
The Democratic brief opposes pending motion to dismiss. Dismissal arguments have already been heard in the cases filed by San Francisco and Oakland, and defendants like Chevron, Exxon and British Petroleum are awaiting a ruling there by Judge William Alsup.
Notable on the briefs in support of dismissal is Colorado Attorney General Cynthia Coffman. The Colorado town of Boulder and counties of Boulder and San Miguel have also filed a climate change lawsuit that is currently in state court.
“(T)he 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 brief says.
“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.”
Defendants and the GOP attorneys general have pointed at a U.S. Supreme Court in the State of Connecticut’s lawsuit against American Electric Power that said federal common law claims – like public nuisance –can’t be used to punish companies compliant with the Clean Air Act.
The Democratic AGs say New York City brought its claims under state common law, not federal common law, and the U.S. Supreme Court has not ruled on that issue yet.
Federal common law claims would be fine too, they argue.
“(AEP)found displacement only because federal law authorized regulation of the same emissions from the same power plants that were the subject of plaintiffs' federal common law public nuisance claims,” the brief says.
“Here by contrast, no federal law provides for the relief that the City seeks to obtain against the defendants for their production and sale of fossil fuels.”
The Trump Administration has likewise showed in court filings that it does not support these lawsuits and would prefer to see them dismissed.
A Texas judge has already ruled that the California plaintiffs have contradicted themselves by alleging certain doom caused by climate change in the lawsuits while not disclosing it in bond offerings to potential investors.
He also agreed with Exxon that the energy industry is the target of a coordinated effort by private lawyers, state attorneys general and Rockefeller money.
AGs on both sides will likely get another chance to weigh in when King County's lawsuit reaches dismissal arguments. Defendants must file their motions by July 27 in that case.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.