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Rhode Island's climate change lawsuit sent to state court, faces hurdle of previous state Supreme Court decision

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By Karen Kidd | Jul 24, 2019


Kilmartin

PROVIDENCE, R.I. (Legal Newsline) – Earlier this week, a federal judge in Rhode Island became sent a climate change lawsuit against energy companies back to state court, rejecting the notion that federal courts have jurisdiction in the matter.

"The state of Rhode Island brings this suit against energy companies it says are partly responsible for our once and future climate crisis," U.S. District Court Chief Judge William E. Smith, on the bench in Rhode Island District Court, said in his opinion and order issued July 22. "It does so under state law and, at least initially, in state court. Defendants removed the case here; the state asks that it go back."

Smith ruled "there is no federal jurisdiction under the various statutes and doctrines" claimed by the defendant energy companies as part of the bid started about a year ago to get the case into federal court.

Smith's opinion and order was handed down shortly after a similar case in Maryland was remanded back to state court. When federal courts decide they have jurisdiction over these cases, plaintiffs are 0 for 3.

Rhode Island's case also was filed more than a decade after high-profile litigation over lead paint. The state's highest court ultimately rejected application of the state's public nuisance statutes, which are also being used by Rhode Island in the climate change case.

Phil Goldberg, special counsel for the Manufacturers' Accountability Project, said climate change should be addressed by policymakers, not courts.

"At the end of the day, this is not a liability issue for state or federal court," Goldberg said.

"Fortunately, the Rhode Island Supreme Court has a strong history of rejecting this type of litigation. If the state really wants to do something about climate change, it should work with manufacturers on energy innovations, not target them for baseless litigation.”

A little more than a year ago, Rhode Island sued 21 fossil fuel companies - including Chevron, ExxonMobile, BP and Shell - in Providence Superior Court, claiming the companies should be liable for climate change in the state. Those climate change impacts in the state allegedly included a substantial rise in sea level rise, severe flooding, extreme rain and drought event and a warmer and more acidic ocean, according to the 142-page lawsuit.

Attorney General Peter Kilmartin hired Sher Edling to file the suit. That firm and Hagens Berman scored several clients, including California municipalities and counties; King County, Wash.; and New York City.

The lawsuit alleged that climate change impacts in the state amounted to violations of the state's public nuisance statutes and its State Environmental Rights Act, in addition to violating other laws, including strict liabilities for failure to warn and design defects. The state has asked for equitable relief - including nuisance abatement - compensatory and punitive damages, disgorgement of profits and attorneys' fees and costs.

Rhode Island filed its lawsuit shortly after a federal judge in California tossed out similar lawsuits filed by municipal officials against energy companies for alleged future effects of climate change. The defendants in the California cases also were included among defendants in Rhode Island's case.

Other cases in California were remanded to their state courts of origin, but that issue is on appeal at the U.S. Court of Appeals for the Ninth Circuit. The dismissals of Oakland's, San Francisco's and New York City's lawsuits were also appealed.

Less than two weeks after the Rhode Island lawsuit was filed, defendant Shell Oil Products Company filed notice to remove the case to federal court. Shell listed multiple grounds for removal, including arguing that the U.S. District Court had federal question jurisdiction. Shell maintained the lawsuit “necessarily raises disputed and substantial federal questions” and that federal law preempts Rhode Island’s claims under state law.

Shell also cited the Outer Continental Shelf Lands Act, the federal officer removal statute, the federal enclave doctrine and the bankruptcy removal statute in its removal notice.

Those arguments "fall short," Smith said in his opinion and order.

"Federal jurisdiction is finite," Smith said in his opinion and order. "So while this Court thinks itself a fine place to litigate, the law is clear that the state can take its business elsewhere if it wants - by pleading around federal jurisdiction - unless defendants provide a valid reason to force removal under statutes 'strictly construed'."

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