BOSTON (Legal Newsline) – Energy companies sued in Rhode Island's climate change lawsuit are pointing to the dismissal of the "Kids Climate Change" lawsuit that made headlines last month, saying it has relevance to their defense.
But Rhode Island's lawyer, who was hired on a contingency fee and could possibly make a large fortune from this and other cases around the country, told the U.S. Court of Appeals for the First Circuit that there's nothing to see in the Jan. 17 ruling in the Ninth Circuit case Juliana v. United States.
Victor M. Sher of Sher Edling LLP made that assertion in his Feb. 5 letter to the clerk of the First Circuit panel to whom the Rhode Island case is assigned. The Juliana decision said climate change redress is a matter for other governmental branches, not the courts - a stance also adopted by judges in San Francisco and New York City.
"The Juliana decision (from the Ninth Circuit, not this Court) has no bearing on this case, in which Rhode Island, exercising sovereign and police power authority, is pursuing traditional state law remedies against private parties to redress past wrongful conduct," Sher wrote in his Feb. 5 letter.
Sher's assertions were in response to a letter to the clerk several days earlier by an attorney for Chevron defendants in Rhode Island's climate change case. In that letter, Chevron attorney Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher maintained the Juliana decision supports defendants' longtime assertions that the Rhode Island case belongs in federal court, rather than in state court.
"These federal interests mandate that Plaintiffs’ claims arise under federal law, and thus support federal jurisdiction, even if those claims ultimately fail for lack of a remedy," Boutrous wrote in his letter.
The conflicting advice in the two letters are among the latest filings in Rhode Island's property damage and product liability case against 21 energy-producing companies now before the First Circuit.
The First Circuit was already mulling amicus briefs that support Rhode Island's pursuit of its climate change lawsuit in state courts, rather than in the defense-preferred federal venue.
The case landed in the First Circuit following an appeal by the energy-producing defendants of an earlier order by U.S. Rhode Island District Court Judge William E. Smith, who remanded the case back to Providence Superior Court.
In the Juliana decision, a split Ninth Circuit three-judge panel dismissed the case after finding plaintiffs lacked Article III standing. The Ninth Circuit panel "reluctantly" concluded that government and the ballot box - and not the courts - are the appropriate venues in which "to remediate the problem" of climate change.
The Juliana case, also called the "Kids Climate Case," is litigation being pursued by a group of youth climate activists against the federal government, alleging climate change inaction.
The youthful plaintiffs "made a compelling case that action is needed," a case so compelling that it will be "increasingly difficult" for other branches of government to deny the reality of climate change, the Ninth Circuit decision said.
"We reluctantly conclude, however, that the plaintiffs' case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box," the Ninth Circuit decision said. "That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes."
Plaintiffs in the Juliana case have said they will appeal.
Both Sher and Boutrous claim that Juliana is on their clients' side, with Boutrous arguing that the Ninth Circuit decision supports defense claims in the Rhode Island case that "necessarily have their source in federal law and therefore belong in federal court."
Sher countered the Juliana decision says nothing of the sort and that "the only issue" before the First Circuit "is whether the district court correctly rejected 'federal-officer' removal jurisdiction."
"Even if the court could reach other issues, nothing in Juliana's general discussion of federal interests, potentially implicated by a prospective 'plan' to guarantee the plaintiffs' claimed constitutional right to a 'climate system capable of sustaining human life,' has any bearing on the state's state law claims or their elements," Sher's letter said.