Having lost climate change lawsuits, Oakland and San Francisco will plead cases to Ninth Circuit this week

By John Sammon

PASADENA, Calif. (Legal Newsline) – Two potentially precedent-setting hearings on Feb. 5 involving California communities will seek to decide who has jurisdiction – federal or state courts – of controversial climate change lawsuits against energy companies like Chevron and Exxon.

“The people (plaintiffs) seek equitable abatement, the only remedy available to mitigate the enormous harms to San Francisco and Oakland’s public infrastructure caused by rising sea levels, increasingly frequent and severe storms, and other direct consequences of the defendants’ challenged conduct,” the plaintiffs’ brief for the U.S. Court of Appeals for the Ninth Circuit read.

The central issue in the case is whether climate change and the damage it causes should be decided in courts, or whether it should remain the purview of government agencies like the Environmental Protection Agency (EPA).

One case pits the cities of San Francisco and Oakland versus Chevron, Exxon, BP, ConocoPhillips and Royal Dutch Shell. Those companies won dismissal at the district court level when a judge ruled it wasn’t up to the courts to regulate greenhouse gas emissions.

In a separate hearing to be heard the same day, in County of San Mateo v. Chevron Corp., the oil companies are asking the appeals court to overturn a district court ruling remanding back to state court the lawsuits of several other climate change plaintiffs.

Attorneys for San Francisco and Oakland originally filed lawsuits under California’s Public Nuisance Law against the companies in the U.S. District Court for the Northern District of California. The allegations state the oil companies wrongfully promoted their polluting products knowing they would increase global temperatures damaging the environment, and concealing from the public the known link between fossil fuels and climate change.

On Feb. 27, 2018, the District Court denied the plaintiffs’ motion to remand the nuisance claims, stating that because of the national and international impact of climate change, the issue was governed by federal common law.

In response, San Francisco and Oakland amended their complaint, adding a claim for public nuisance under federal law.

On June 25, 2018, the District Court granted the defendants’ motion to dismiss the case for failure to state a claim, adding that no rights or remedies had been made available by federal law. The District Court determined the plaintiffs’ claim was an attempt to regulate worldwide greenhouse gas emissions and in seeking to abate localized harms, would allow the plaintiffs to govern energy policy on foreign soil.

On July 27, 2018, the District Court granted the defendant’s motion to dismiss the case for lack of jurisdiction as well, citing the impossibility of demonstrating a strictly “in-California” cause of injury against multiple defendants including foreign companies.

The plaintiffs allege the District Court erred twice.

“It erred by failing to remand the people’s well-pleaded state law claims to state court in the absence of complete preemption (or any alternative basis for removal),” their brief says.

“Second, the court compounded its error by dismissing the people’s claims. Both of its principal grounds for dismissal – the supposedly ‘extraterritorial’ reach of the People’s legal challenge and the interference with ‘foreign policy’ that such extraterritorial reach would require – rested on a mischaracterization of the People’s public nuisance claims. The people’s complaints do not challenge the defendants’ green-house gas emissions worldwide or domestic.”

Plaintiff attorneys recommended reversing the District Court judgment and remanding the case against the defendants for further proceedings.

“The people’s claims do not present a federal question,” their brief concluded. “California public nuisance claims are not governed by federal common law… The District Court erred in concluding that the people’s claims are completely preempted by a federal law that offers no remedies.”

The brief further stated the District Court had wrongly concluded the plaintiff’s claims sought to regulate green-house emissions.

“Federal common law has been entirely displaced by the Clean Air Act,” the brief said. “The CAA does not completely preempt the people’s California public nuisance claims.”

Plaintiffs’ attorneys said the District Court decision should be reversed and the case remanded for further adjudication by state courts.

Attorneys for the oil companies said the District Court’s decision to dismiss the complaints for lack of personal jurisdiction was correct.

“The cities do not contest that they must establish causation in order to obtain specific jurisdiction over defendants in California,” the defendants’ brief read. “Instead, they argue that the District Court incorrectly applied the but-for test. But the cities cannot cast the defendants’ worldwide production of fossil fuels over the last century as ‘California-related’ simply because global conduct allegedly led to emissions that in combination with other emissions, eventually contributed to harm in California.”

The defendants pointed out that aside from Chevron, all the defendants are based outside of California.

“The cities’ claims did not arise out of defendants’ activities in California, but rather from the alleged worldwide combustion of fossil fuels dating from the 19th century,” the attorneys argued. “The exercise of jurisdiction in these circumstances would be unreasonable.”

Federal Rules of Civil Procedure would not permit California court jurisdiction over companies such as BP and Royal Dutch Shell, based in foreign countries, the brief noted.

The defendants’ lawyers argued the plaintiffs could not demonstrate that climate and sea level rise would not have occurred but for the activities of the defendants in California.

“Climate change is a global phenomenon, allegedly resulting in part from the worldwide use of fossil fuels,” the defendants state. “…It’s clear the cities are in fact making a far more sweeping assertion: that all of defendants’ worldwide production should qualify as California-related…”

The defendants said that if other nations adopted the logic argued by the plaintiffs, American companies could be subject to similar lawsuits for climate change-related claims across the globe.

The District Court judgment dismissing the case for lack of jurisdiction was correct and should be upheld, the brief stated.

The plaintiffs are represented by the Oakland Office of the City Attorney, the San Francisco Attorney’s Office, Altshuler Berzon and Sher Edling, which is handling the case on a contingency fee. The defendants are represented by Paul, Weiss, Rifkind, Wharton & Garrison; Arnold and Porter Kaye Scholer; and others.

A number of climate change lawsuits are currently working their way through the courts with more than a dozen cities and counties suing the oil companies including New York City, Boulder, Colorado, Baltimore, Maryland, the state of Rhode Island and King County in Washington State.

In Oregon last year, a three-member panel of the Ninth Circuit ruled 2-1 to dismiss a case involving 21 young plaintiffs ages 8 to 19 who alleged global warming caused by the oil producers had harmed them physically and degraded their quality of life.

The decision was considered a blow to climate activists while critics contended the activists were improperly trying to force climate change abatement through the courts when it is the responsibility of government to do so.

The plaintiffs are hoping to transfer their suits to state courts they consider to be friendlier to their cases.