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Tuesday, September 17, 2019

DOJ urges appeals court to throw out NYC's global warming lawsuit

Lawsuits

By Tomas Kassahun | Mar 15, 2019


NEW YORK (Legal Newsline) – In a brief filed March 7 in the U.S. Court of Appeals for the Second Circuit, the Department of Justice (DOJ) said it supports the dismissal of New York City's climate change lawsuit against the oil industry. 

According to the DOJ, the appeals court should affirm the judgment of the U.S. District Court

for the Southern District of New York and hold that the City of New York’s nuisance and trespass claims against the oil industry must be dismissed because they cannot be sustained regardless of whether they arise under state or federal law.


The DOJ said the city asserts claims under the common law of New York State based on alleged harms from out-of-state greenhouse gas emissions. 

“Considering the complaint on its face, this court should conclude that those claims are pre-empted by the Clean Air Act,” the DOJ said in the filing. “The Supreme Court has held that the Clean Water Act – which has a parallel structure to the Clean Air Act – pre-empts state common law nuisance claims that regulate out-of-state pollution sources.”

The DOJ said the challenged conduct in this case takes place almost entirely outside the state of New York, so the city’s claims must be dismissed. 

According to the DOJ, the city’s claims are also preempted because they challenge production and consumption of fossil fuels abroad, “which interferes with the conduct of foreign commerce and foreign affairs and exceeds the state’s authority under the due process clause.”

In regards to the district court’s ruling that the city’s claims arise under federal common law and thus are prohibited by precedent, the DOJ said the United States agrees that these claims fail if considered as arising under federal law.

“First, such nuisance claims under federal common law are not available to municipalities (as opposed to states) and the judgment can be affirmed on that basis alone,” the DOJ said.

Second, the DOJ said recognizing “such broad and novel claims here is inconsistent with the Supreme Court’s narrow view of federal common law and with principles of judicial restraint.”

The DOJ added that the court may affirm the ruling on the ground that the claims in this case should be dismissed because they would entangle the judiciary in matters assigned to the representative branches of government. 

Also on the subject of climate change, Steve Milloy, a former member of President Donald Trump's EPA transition team, criticized the stances of several state attorneys general.

In an article on cnsnews.com, Milloy said liberal attorneys general may have just signaled their intent to sue the pants off the Trump administration just as soon as any of various proposals to rollback (President Barack) Obama climate initiatives are finalized. 

“But if the AGs haven’t just undermined their own impending lawsuits, they certainly have gone a long way toward debunking all the hot air being spluttered over the Obama climate agenda rollback – regardless of your views on climate science,” Milloy wrote in the article. 

Milloy criticized New York University's law school’s State Energy & Environmental Impact Center, saying it published inaccurate reports after it was given $6 million by Bloomberg Charities for the purpose of providing free legal services to state AGs who wanted to advance the climate agenda without having to spend their own resources doing so.

Other climate change cases have been filed by counties and municipalities in California, Washington, Colorado and Maryland, while the state of Rhode Island has also filed suit.

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