PROVIDENCE, R.I. (Legal Newsline) – A judge on the other side of the country has ruled that it isn’t an issue for the courts, but that is not stopping Rhode Island Attorney General Peter Kilmartin, and the private lawyers he has hired, from suing the oil industry over alleged effects of climate change.
In fact, Kilmartin is adding even more defendants than those named already in lawsuits in California, Washington, New York and Colorado. He and attorneys at Sher Edling aren’t just blaming the original five companies but also Motiva Enterprises, Citgo, Marathon Oil, Speedway, Hess Corp., Lukoil Pan Americas and Getty Petroleum Marketing.
Last week, a federal judge sided with the companies sued by San Francisco and Oakland, dismissing those lawsuits. The defendants there, and now also in Rhode Island, are Exxon, Chevron, BP, ConocoPhillips and Royal Dutch Shell.
“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.”
Not so, says Kilmartin, whose absence in briefs supporting the California and New York City cases is now notable.
“We are supportive of the fellow Democratic AGs in regard to climate change, despite not signing on to the earlier amicus briefs,” a statement from Kilmartin’s office to Legal Newsline says.
Kilmartin filed his lawsuit in state court, as did several other plaintiffs who watched as defendants removed their lawsuits to federal court because they dealt with the federal common law theory of “public nuisance.”
One California judge, though, sent some cases back to state court. The defendants have appealed that ruling.
“We maintain that public nuisance is a viable state law claim despite the ruling in San Francisco,” Kilmartin’s office says. “And, unlike the San Francisco case, Rhode Island’s case has a much broader reach with a number of other state law claims.
“Additionally, despite the decision to defer to Congress to legislate generally or the Executive to address climate change diplomatically, that does not negate the recourse available through the judicial system for an individual, or in this instance the State, to present its claims to have them addressed by the courts.”
Plaintiffs are alleging the public nuisance of climate change will force them to spend money on infrastructure that would combat rising sea levels.
Exxon called the California plaintiffs hypocrites, filing an action in Texas state court that says those counties and cities never disclosed this alleged near-certain harm in bond offerings. A judge in Fort Worth has signed off on Exxon’s findings of fact.
The cases face other legal hurdles, like a 2011 U.S. Supreme Court ruling that declared the regulation of greenhouse gases to be a matter for the Environmental Protection Agency to handle.
Lawyers at Hagens Berman, which is representing several climate change plaintiffs, say they are suing the oil industry for producing and selling fossil fuels, not over greenhouse gas emissions.
The judge presiding over New York City’s lawsuit showed skepticism at a recent hearing on the motions to dismiss filed in that case. The complaint even said climate change “comes primarily from fossil fuel emissions.”
“This is an emissions case,” Judge John Keenan said. “Aren’t you trying to dress up a wolf in sheep’s clothing?”
But deferring to Congress or the executive branch overlooks the role of the judiciary to “vindicate specific legal claims for specific harms,” Kilmartin’s statement said.
Signing the complaint were attorneys at San Francisco’s Sher Edling. It is so far unknown what percentage the firm would make in any recovery, but Legal Newsline has asked Kilmartin’s office for the details of the agreement.
The firm doesn’t appear to be as politically active as some of the country’s other prominent plaintiffs firms, but Victor Sher recently donated to one of the state’s most popular politicians, U.S. Sen. Sheldon Whitehouse.
This year, Sher has sent $5,050 to Whitehouse, who formerly served as the state’s attorney general.