WASHINGTON (Legal Newsline) – As the U.S. Supreme Court decides where Baltimore’s climate change lawsuit against the energy industry should be heard, defendants are asking a D.C. federal judge to keep the district’s case in his court.
Exxon, Chevron, Shell Oil and British Petroleum on Oct. 15 filed their opposition to District of Columbia Attorney General Karl Racine’s effort to get his case back in state court, where plaintiffs around the country are convinced they have a better chance of hitting Big Oil with billions of dollars in liability.
Lawsuits from an alliance of government officials and private lawyers working on contingency fees stretch from Hawaii to Rhode Island. They seek to hold corporations accountable for the costs of climate change.
In every case, officials and their hired guns have battled with defendants on whether the litigation will be heard in state or federal court. A coming SCOTUS decision in Baltimore’s lawsuit will provide guidance.
Plaintiffs make their claims under state law, but defendants say the impact these cases will have on the entire country – and world – can’t be ignored.
“(D.C.) cannot avoid federal court simply because it has omitted the language of federal law from its complaints,” attorneys for the defendants wrote.
“The Attorney General seeks to use the District of Columbia Consumer Protection Procedures Act as a vehicle to force Defendants to discontinue or reduce their extraction, production, and sale of fossil fuels around the world.
“But United States federal policy has, for many decades, expressly recognized the fundamental strategic importance of oil and gas to the nation’s economic well-being and national security. Congress provided for removal to prevent precisely this type of interference with longstanding federal policy. This case belongs in federal court.”
The only federal judges to decide motions to dismiss have thrown out the lawsuits of San Francisco, Oakland and New York City, ruling that it is not up to the judiciary to impose greenhouse gas regulations on the rest of the world.
The latest trend is to send these cases back to various state courts, like federal judges in Rhode Island, Baltimore and Colorado have. The U.S. Court of Appeals for the Ninth Circuit has also overturned the decisions against Oakland and San Francisco and told the federal trial judge to reconsider the jurisdiction issue.
The Ninth Circuit’s 30-page decision was written by Judge Sandra Ikuta, a George W. Bush nominee, and joined by judges Morgen Christen and Kenneth Lee. In it, the panel said Judge William Alsup erred last June when he dismissed the climate lawsuits because they failed to state a claim that could be resolved by the judiciary.
Alsup’s decision was a blow to the politically connected private law firms that are pursuing climate lawsuits on behalf of cities and counties around the country and will earn tens of millions of dollars in fees if they win their multibillion-dollar claims.
Opponents of climate litigation say it represents an attempt by environmentalists and profit-seeking private lawyers to use the courts to achieve goals they cannot accomplish through the political process.
The Ninth Circuit didn’t return the Oakland and San Francisco cases directly to state court, instead giving Judge Alsup another chance to determine whether his court has jurisdiction to hear the lawsuits. If he doesn’t find jurisdiction, the panel ruled, the cases must return to state court. One possibility the judge raised, of using federal maritime, is precluded because the oil companies didn’t raise it in prior filings, the appeals court ruled.