WASHINGTON (Legal Newsline) – One of the latest in the “barrage of tort suits” over climate change should be heard by a federal judge, Exxon recently argued in a court filing.
A group called Beyond Pesticides filed its case this summer in District of Columbia Superior Court – the D.C. equivalent of a state court, but Exxon removed the case to federal court. Exxon argued two different reasons made removal proper.
On Aug. 5, Beyond Pesticides filed a motion asking the federal judge to send the case back to Superior Court. Exxon responded a month later.
“In recent years, climate activists have colluded with like-minded state and local officials to file a barrage of tort suits against ExxonMobil and other energy companies,” Exxon’s lawyers wrote.
“Although the fora and causes of action have varied, the goals of these suits have been consistent: to ‘chill and suppress’ the speech of ExxonMobil and other energy companies on climate and energy policy, legal remedies that would coerce ExxonMobil and other energy companies to abandon the fossil fuel business.
“This lawsuit, brought by a Washington, D.C. advocacy organization, is no different.”
The group claims Exxon lied about investing in clean energy. It claims Exxon is wrong to claim its clean energy activities are a significant proportion of its business. The company has faced various theories in climate change cases around the country and twice had a federal judge dismiss allegations it created the “public nuisance” of climate change.
One of those dismissals was overturned, however, when the U.S. Court of Appeals for the Ninth Circuit ruled the cases should be heard in state court. That thinking has largely been the trend with other judges, too.
Exxon says Beyond Pesticides’ case belongs in federal court because of diversity jurisdiction – Exxon is headquartered in Texas, Beyond Pesticides in D.C. – and pursuant to the Class Action Fairness Act of 2005.
The company’s lawyers say the case is essentially a class action in which more than $5 million is contested, which would make removal under CAFA proper. Beyond Pesticides says it is acting as a private attorney general, not a class action lead plaintiff.
“Plaintiff cannot invoke the size of the class it purports to represent as a basis for defeating diversity jurisdiction, only to claim in the next breath that it does not represent a class at all when arguing against CAFA jurisdiction,” Exxon’s lawyers wrote.