Judge Throws Out New York Climate Lawsuit

By: John Schwartz

A federal judge has rejected New York City’s lawsuit to make fossil fuel companies help pay the costs of dealing with climate change.

Judge John F. Keenan of United States District Court for the Southern District of New York wrote that climate change must be addressed by the executive branch and Congress, not by the courts.

While climate change “is a fact of life,” Judge Keenan wrote, “the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”

The 23-page decision is a second defeat for local and state governments seeking to use the judiciary to address problems caused by climate change. The first was in a case brought by San Francisco and Oakland that was thrown out last month by Judge William H. Alsup of Federal District Court in San Francisco.

The cases, which have generally been considered long shots, rely on the area of public nuisance under state common law, which allows courts to hold parties responsible for actions that interfere with the use of property.

Earlier attempts to use nuisance claims in lawsuits about climate change have been brought unsuccessfully under federal law in cases like American Electric Power v. Connecticut. In a unanimous 2011 decision, the Supreme Court said that the Clean Air Act displaced the federal common law of nuisance and gave jurisdiction over the issues to the Environmental Protection Agency.

The cases brought by New York, San Francisco and other governments around the country have taken a different route, pursuing nuisance doctrine at the state level. The cases argue that state common law has not been similarly displaced.

In Thursday’s New York decision, Judge Keenan ruled that the city’s federal common law claim was, in fact, displaced by the Clean Air Act, and he rejected the notion that state law could be used to address the issue, writing that it would be “illogical” to allow the claims under state law “when courts have found that these matters are areas of federal concern that have been delegated to the executive branch as they require a uniform, national solution.”

Using domestic courts to litigate issues of international greenhouse gas emissions, he wrote, “would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. government.”

Judge Keenan sounded skeptical in a hearing about the case last month, arguing with a lawyer for the city, Matthew Pawa, over the role of users of fossil fuels in causing climate change — including, the judge stressed, the city itself.

“I mean, aren’t the plaintiffs using the product that is being the subject of the lawsuit and haven’t they been using it and aren’t they continuing to use it?” he asked. He cited the city’s tens of thousands of police cars, sanitation trucks, fire trucks and more. “If you go out the door and over to Foley Square,” he said, “you’re going to find police cars.”

The companies did not deny in their filings that climate change is occurring or that humans are to blame, and Judge Keenan’s opinion reflected this scientific evidence. He acknowledged that “climate science clearly demonstrates that the burning of fossil fuels is the primary cause of climate change.” He also noted that the city alleged that the industry knew the risks of climate change from the 1950s onward, but “engaged in an overt public relations campaign intended to cast doubt on climate science.”

Theodore J. Boutrous, Jr., the lead lawyer for Chevron in these suits, said “Judge Keenan got it exactly right. Trying to resolve a complex, global policy issue like climate change through litigation is ‘illogical,’ and would intrude on the powers of Congress and the executive branch to address these issues as part of the democratic process.”

In addition to Chevron, the defendants in the case were BP, ConocoPhillips, Exxon Mobil and Royal Dutch Shell.

This is not the end of the line of cases. San Francisco has announced that it will appeal Judge Alsup’s decision. Other local governments around the United States have filed similar suits, and Rhode Island this month became the first state to begin litigation.

Seth Stein, a spokesman for the New York City, said: “The mayor believes big polluters must be held accountable for their contributions to climate change and the damage it will cause New York City. We intend to appeal this decision and to keep fighting for New Yorkers who will bear the brunt of climate change.”