Federal judges continue to reject the efforts of private lawyers who hold a financial stake in lawsuits brought by government officials against the oil industry over the alleged effects of climate change.
On Thursday, a New York federal judge dismissed the lawsuit brought by New York City and attorneys at Hagens Berman working on a contingency fee against five of the biggest oil companies in the world, finding that the issue has already been decided by the U.S. Supreme Court.
It’s not the job of the judiciary to regulate greenhouse gases, Judge John Keenan wrote. That task rests with the federal government, says Keenan’s opinion, endorsing the thoughts of the California federal judge who tossed lawsuits from San Francisco and Oakland in June.
It’s another blow to the group of plaintiffs that has climate change cases in federal court.
“Although the City agrees that ‘federal common law has long applied to’ suits against ‘direct emitters of interstate pollution,’ it contends that its claims are not governed by federal common law because ‘the City bases liability on defendants’ production and sale of fossil fuels – not direct emissions of [greenhouse gases],” Keenan wrote.
“However, regardless of the manner in which the City frames its claims in its opposition brief, the amended complaint makes clear that the City is seeking damages for global warming-related injuries resulting from greenhouse gas emissions, and not only the production of Defendants’ fossil fuels.”
Currently, all but one in the recent string of climate change lawsuits are in federal court. Several counties and cities in California kicked things off last year, and a federal judge has remanded their cases to state court to deal with state law issues.
But defendants – Chevron, BP, Exxon, Royal Dutch Shell and ConocoPhillips – have appealed those rulings to the U.S. Court of Appeals for the Ninth Circuit.
However, Judge William Alsup drew the cases of San Francisco and Oakland and asserted federal jurisdiction over them, then threw them out of court.
King County, Wash., is using the same private lawyers, working on a contingency fee, as many of the plaintiffs. Its case is also in federal court.
Boulder, Colo., looked like it was going to be free to litigate its case in state court but recently decided to amend the lawsuit to include a claim for civil conspiracy. Filing an amended complaint allowed defendants Exxon and Suncor to remove the case to Colorado federal court, where it will be heard by a judge appointed by President George W. Bush.
Rhode Island Attorney General Peter Kilmartin’s lawsuit is the only case in state court, though the time period for the many defendants to remove it to federal court has not expired.
New York City Mayor Bill de Blasio used the law firm Hagens Berman for his case, as have many of the other plaintiffs, to push a theory of “public nuisance” on the oil industry.
Unfortunately for the plaintiffs, there exists U.S. Supreme Court precedent that says it is the job of the Environmental Protection Agency to administer the Clean Air Act and regulate greenhouse gases.
“As an initial matter, it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades,” Keenan wrote.
“More importantly, Congress has expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.”
Resisting these lawsuits have been several Republican state attorneys general and the Trump administration. Opposition to the cases argues that is the job of the legislative and executive branches to regulate greenhouse gases.
Where these cases have been filed has not been surprising. In Rhode Island, the state previously attempted a similar “public nuisance” theory on the former makers of lead paint. Boulder has a history of addressing climate change, and Washington’s King County is home to Hagens Berman’s headquarters.
And California and New York have reputations as two of the country’s most favorable jurisdictions for plaintiffs lawyers.
“We’re thrilled with Judge Keenan’s decision today to dismiss the City’s baseless climate change lawsuit. New York is already a haven for excessive litigation and this kind of lawsuit only adds to the problem,” said Tom Stebbins, executive director of the New York Lawsuit Reform Alliance.
“Trial lawyers are attempting to politicize the legal system and stretch tort law far beyond its purposes in search of the next litigation jackpot.
“Unelected, profit-seeking trial lawyers should not be pushing public policy through the courts. That is not the role of the civil justice system; it is the domain of Congress and state legislatures – elected officials accountable to the people.”
A final note: Exxon’s defense includes an attack on statements made by the California cities and counties when they presented bond offerings. A Texas judge has found that those municipalities told contradictory stories – alleging near certain, climate change-caused doom in their lawsuits while neglecting to inform potential investors in bonds of those dangers.
The California plaintiffs have appealed that ruling, which could pave the way for depositions of and a lawsuit against government officials and Hagens Berman attorney Matt Pawa.
Date: Jul 20, 2018