SAN FRANCISCO (Legal Newsline) - Three California counties will be able to continue their lawsuits against the oil industry in their home courts, after the Ninth Circuit Court of Appeals rejected arguments their claims based on global warming raised issues of federal and international law that required them to remain in federal court.
The influential appeals court ruled after it was forced to reconsider an earlier remand decision following the U.S. Supreme Court’s opinion in a similar lawsuit by the City of Baltimore requiring appeals courts to consider all of a company’s arguments for removing cases to federal courts. After reviewing the case again, however, a three-judge panel of the Ninth Circuit led by Judge Sandra S. Ikuta came to the same conclusion.
“Even if the complaints raise federal policy issues that are national and international in scope, implicate foreign affairs and negotiations with other nations, and require uniform standards, they do not `raise a substantial question of federal law for the purpose of determining whether there is jurisdiction,’” the court ruled, citing its earlier decision in a climate case brought by the City of Oakland.
The counties of San Mateo, Marin and Imperial Beach sued more than 30 oil and gas companies in 2017, accusing them of concealing the hazards of global warming associated with burning hydrocarbon fuels. Following a strategy devised by legal academics and contingency-fee lawyers at Sher Edling, the counties made only state-law claims including public nuisance and violations of consumer protection laws to avoid federal court jurisdiction.
The defendants removed the cases to federal court anyway, claiming a variety of arguments including preemption under the federal Clean Air Act, the fact the products blamed for global warming were produced on federal lands, and the federal officer doctrine under which companies can’t be sued in state court over actions they took at the direction of federal officials.
In an April 19 decision, the Ninth Circuit panel rejected every argument. While the lawsuits raise questions about CO2 emissions covered by the Clean Air Act, the court said that law doesn’t completely preempt the state-law claims.
Likewise the court said the tort claims didn’t arise from activities on a “federal enclave” and weren’t removable under the Outer Continental Shelf Lands Act. That law gives federal courts exclusive jurisdiction over claims “arising out of, or in connection with” drilling activities on the outer Continental Shelf, but breaking with other circuits, the Ninth said the law only covers torts that actually occur on federal lands.
The counties accuse the oil companies of misleading consumers and government officials about the effects of fossil fuel consumption on global warming, which have been widely known for many decades. Since those deceptions allegedly occurred on dry land, the Ninth Circuit ruled, they don’t “arise out of, or in connection with” producing the fuels that caused the harm.
Climate-change plaintiffs suffered early defeats when federal appeals courts in California and New York rejected their lawsuits as raising unjusticeable political questions. They retooled their strategy in part to navigate around those decisions and in part to maintain their lawsuits in state courts, where they can reasonably expect to achieve better results, especially against out-of-state corporations they are asking to pay billions of dollars that would flow to local infrastructure projects.