WASHINGTON (Legal Newsline) – Exxon won’t get to defend itself in federal court from an advocacy group that claims the company has not done enough to combat climate change.
Judge Timothy Kelly on March 22 sent Beyond Pesticides’ case back to D.C. Superior Court, where it was first filed before Exxon removed it to federal court under the argument that it was actually a class action.
The Class Action Fairness Act allows defendants to have those types of cases heard in federal court if more than $5 million is at stake.
“Beyond Pesticides makes no allegations in its complaint about a potential class…” Kelly wrote. “And as it argues, courts in this district have consistently – and persuasively – concluded that suits on behalf of consumers brought under the (D.C. Consumer Protection Procedures Act)… are ‘private attorney general suits’ and not class actions as defined by CAFA, in cases ‘where (a) plaintiff has not brought a ‘class action’ under D.C. Superior Court Rule 23.”
Beyond Pesticides 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, as Exxon pursues appeals.
Exxon also said Beyond Pesticides’ case belongs in federal court because of diversity jurisdiction – Exxon is headquartered in Texas, Beyond Pesticides in D.C. and more than $75,000 is at stake considering the cost of compliance with the proposed injunction.
“The problem for Exxon Mobil is that total cost of its compliance is not a proper measure of the amount in controversy because it would violate the non-aggregation principle,” Kelly wrote.
“But whatever its applicability in other contexts, no court in this district has ever applied that exception to permit circumvention of the non-aggregation principle in a case brought by a single plaintiff involving the type of claims and relief at issue here.”