SAN FRANCISCO (Legal Newsline) – A California federal judge has rejected the efforts of municipal officials who teamed with private lawyers to seek to hold the energy industry liable for the alleged future effects of climate change.
In a 16-page order released Monday, U.S. District Judge William Alsup granted the motions to dismiss from the five targeted companies – Chevron, Exxon, ConocoPhillips, Royal Dutch Shell and British Petroleum.
The plaintiffs in the consolidated cases – the cities of San Francisco and Oakland – and their private lawyers face significant legal hurdles in their attempt to use the common law claim of “public nuisance” to force the companies to pay for infrastructure that would combat rising sea levels.
Critics of the cases - which have also been filed by other California governments, New York City, three Colorado governments and King County, WA – said it was improper to ask a court to force liability on companies that are in compliance with federal regulations.
“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case,” wrote Alsup, the first judge in any of the cases to issue a ruling on dismissal arguments.
“While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches.”
Another blow to private lawyers hoping to earn a percentage of the recovery could be coming in the case filed by New York City, where a federal judge seemed less than impressed by the plaintiff’s arguments during a recent dismissal hearing.
Alsup’s order accepted arguments that were also pushed by the Trump administration and 15 Republican state attorneys general. They said forcing judicial intervention would upset the regulatory scheme created by the Clean Air Act and carried out by federal and state governments.
Among those AGs signing their names to a pair of amicus briefs was Colorado’s Cynthia Coffman, who opposed the case filed by the city and county of Boulder and San Miguel County.
“Although the scope of plaintiffs’ claims is determined by federal law, there are sound reasons why regulation of the worldwide problem of global warming should be determined by our political branches, not by the judiciary,” Alsup wrote.
Alsup’s order followed a May hearing and his decision earlier this year to keep the cases in federal court. They were originally filed in state court before defendants removed them.
Alsup noted that he felt the plaintiffs’ claims were governed by federal law, but that federal law should not be used to create the relief requested.
Having also conducted a sort-of seminar on climate change science, he decided global warming is real.
“But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide,” he wrote.
For the moment, San Francisco’s and Oakland’s lawsuits join other similar causes that fell short.
The U.S. Supreme Court rejected a lawsuit by Connecticut and seven other states against American Electric Power in 2011, ruling in AEP v. Connecticut that global warming “is an undertaking for the political branches.”
California’s lawsuit against GM and five other automakers came to an end in 2007 when a federal court said it couldn’t deliver a remedy to global warming caused by vehicle emissions without first making an inherently political decision about whether it is reasonable to allow gasoline-fueled automobiles on the road at all.
And the residents of Kivalina in Alaska also lost in 2009 when the U.S. Court of Appeals for the Ninth Circuit ruled the Clean Air Act preempted their lawsuit.
The public nuisance claim has found some success, however, in a lawsuit against the former makers of lead paint. Several companies sued by California cities are facing a bill of $400 million to $700 million after the state Supreme Court refused to review an appeals court decision.
Elsewhere in California, this latest trend of litigation has resulted in the City of Richmond suing its largest employer, Chevron.
The same private lawyers who won the lead paint case are representing cities in the latest round of global warming cases, including Cohen Milstein and Hagens Berman. Hagens Berman partner Matthew Pawa is considered an architect of the public nuisance theory, having argued the Kivalina case and promoted judicial solutions to global warming for years.
Another prong of Exxon’s defense continues in Texas, where a Fort Worth judge has signed off on findings of fact that state the California plaintiffs are making claims that are inconsistent with previous bond offerings, simultaneously predicting climate change doom while telling possible investors that they can't know for sure.