WILMINGTON, Del. (Legal Newsline) – Claiming the federal issues presented by suing Big Oil for climate change aren’t significant enough, Delaware Attorney General Kathleen Jennings is arguing her case should be heard in a state court.
The jurisdiction argument that worked its way through California federal courts will be decided by the U.S. Supreme Court as companies like Chevron, BP and Exxon feel they can mount a stronger defense in federal court.
Several government entities like San Francisco, New York City and Rhode Island have hired private lawyers working on contingency fees to claim the oil industry has created the public nuisance of global warming.
“The State’s claims do not challenge a federal statute or agency program, and they do not turn on a ‘dispositive,’ ‘pure’ issue of federal law that ‘would be controlling’ in other cases,” Jennings' lawyers said in a motion to remand on Jan. 5.
“Instead, they raise only state-law issues that are highly ‘fact-bound and situation-specific,’ and any connection to future questions of federal law is ‘hypothetical.’”
Jennings hired the firm Sher Edling, a San Francisco law firm that has recruited other clients like California cities and Rhode Island.
The U.S. Supreme Court, in taking on Baltimore’s case, isn’t being asked to decide the core issue in climate litigation, which is whether these cases belong in court at all. The defendant companies, mostly oil producers but also their industry association, say the lawsuits are an attempt to end-run elected legislators who are responsible for energy policy.
Federal courts in New York and California agreed, dismissing lawsuits by New York City and San Francisco. But the San Francisco case was revived when the U.S. Court of Appeals for the Ninth Circuit found it should have been heard in state court.
Since then, climate activists and private lawyers have scored successes in Maryland and Colorado, winning orders sending their cases back to local courts which may view lawsuits seeking billions of dollars from out-of-state corporations more favorably.
The lawsuits generally accuse oil companies of failing to tell consumers about the effects of CO2 emissions on global climate, which plaintiff lawyers say represents fraud. The lawsuits don’t seek damages for actual emissions of greenhouse gases, since that would implicate their own government clients, who use hydrocarbon fuels to heat their buildings and operate their vehicles.