Oil companies go for another win in climate change fight, ask for dismissal of Wash. county's case

By William Sassani | Sep 18, 2018

SEATTLE (Legal Newsline) - In August, lawyers arguing for a group of oil companies submitted a motion to Judge Robert S. Lasnik of the U.S. District Court of the Western District of Washington asking that King County’s climate change lawsuit be dismissed.

In their 56-page motion, British Petroleum, Chevron, ConocoPhillips, Exxon and Royal Dutch Shell used several examples of U.S. law for the basis of their argument. These included nuisance law, rulings from the U.S. Supreme Court, the Clean Air Act and the First Amendment to the U.S. Constitution.

The companies argue that King County’s basis for its argument, which relies on Washington State law, is invalid. This is because climate change should be an issue for federal lawmakers, not King County executives or the judiciary

It's the same argument that was victorious in cases brought by San Francisco, Oakland and New York City. Those three are appealing the dismissal of their claims.

"As the courts in Oakland and New York both recognized, the law that governs the sort of global warming tort claims asserted here is federal common law, but Plaintiff’s Complaint fails to state a viable cause of action under federal common law standards," the motion says.

"Indeed, the Complaint’s conflict with federal law and policy could not be starker."

The defendants argue that the United States has enacted laws to regulate pollution and that it has participated in international treaties with foreign countries regarding the issue. 

"This case is about global productions and global emissions, not a local nuisance," the motion says.

They argue that any tort claims have been displaced by the Clean Air Act, which is a federal law. They quote case law saying that the Supreme Court, “thus held that ‘the Clean Air Act and the EPA actions it authorizes displaces any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.’”

Another argument they make is that the claims made by King County are prohibited by the Commerce Clause. This is in regard to who should regulate business activities. Their argument is that King County wants “to impose Washington’s legal standards on out-of-state commercial activities.” 

This would be considered illegal and a violation of the Commerce Clause, which says the federal government controls interstate commerce, the motion says.

The companies say that arguments from King County regarding deceptive practices are also invalid. That, in fact, their actions such as research and marketing are protected as free speech under the First Amendment to the U.S. Constitution. Also, King County itself has benefited from the use of fossil fuel, and that the companies cannot be held liable for activity that has been considered legal for over 100 years, they say.

"Plaintiff asks this Court to disregard the recognized boundaries of tort law and hold these select Defendants liable for the actions of literally billions of third parties not just in King County, but around the world," the motion says.

"These claims cannot be adjudicated without deciding whether the alleged harms are outweighed by the social utility of fossil fuels — not just in King County, but around the world.

Further, the oil companies pushed back on claims made by King County that their activities are considered a nuisance. They argue that “Washington law explicitly authorizes the conduct targeted by Plaintiff’s claims — fossil-fuel production, promotion, and sale.” They quote Washington code that such activities are in the public interest. Thus, if such activities are protected under Washington law, the argument is that they cannot be considered a nuisance.

King County is home to Seattle, which is home to the law firm pushing these cases around the country - Hagens Berman. The firm is working on a 16% contingency fee, though its other clients are paying a few percent more.

Several cases in California have been remanded to state court, though the oil companies are appealing that decision, while the issue of where to hear the case of Boulder, Colorado, has not yet been decided by a Denver federal judge.

Rhode Island and Baltimore have also filed climate change lawsuits.

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Organizations in this Story

British Petroleum Chevron U.S.A. ConocoPhillips Exxon Mobil Hagens Berman Sobol Shapiro LLP King County Royal Dutch Shell

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