WASHINGTON (Legal Newsline) – It’s no surprise, but a recent court filing by companies like Exxon, Shell, BP and Chevron that are facing climate change litigation shows they won’t give up their fight to have the cases heard in federal courts – where the suits face tougher hurdles.
First, federal courts dismissed two cases. But some federal appeals courts have ruled others - which range from Hawaii to Rhode Island - don't belong in federal court and have remanded them to the state courts they were filed in.
Recently, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit remanded cases brought by San Mateo County and other California governments that hired private lawyers on contingency fees. A May 3 filing in Washington, D.C., federal court says the oil industry intends to ask the full roster of Ninth Circuit judges to rehear the issue. Defendants pointed to a U.S. Court of Appeals for the Second Circuit ruling that said the cases, though they make claims under state law, have worldwide consequences.
“The Second Circuit expressly held that federal common law governs suits ‘seeking to recover damages for the harms caused by global greenhouse gas emissions,’ as the (D.C.) Attorney General’s does here,” they wrote.
“By contrast, the Ninth Circuit held that, even assuming the claims implicate federal common law, the Clean Air Act had ‘displaced’ the federal common law of interstate pollution and therefore rendered removal jurisdiction impermissible by somehow empowering state law to govern in areas where it has never before permissibly extended.”
Should the Ninth Circuit and others not change their minds, the defendants intend to petition for a writ of certiorari seeking Supreme Court review, they wrote.
In the Ninth Circuit, 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.