States Against Climate Change Lawsuits Ask For Dismissal Of NYC’s

By: John O’Brien

The top lawyers of 15 states are again asking a federal judge to reject the legal strategy used by public officials and the private attorneys with whom they’ve teamed to sue the energy industry over alleged effects of climate change.

Fifteen state attorneys general, led by Indiana’s Curtis Hill, filed last week a friend-of-the-court brief in New York City’s global warming lawsuit that was filed earlier this year. The same AGs have already filed a similar brief in California, where the trend of bringing these lawsuits under a “public nuisance” theory began last year.

The attorneys general, all of whom are Republicans, take issue with using litigation to punish an industry that is already regulated by the federal Environmental Protection Agency.

Like officials in California and King County, WA, New York City Mayor Bill de Blasio has hired lawyers from Hagens Berman on a contingency fee who stand to make a fortune if the cases are successful.

“Federal courts should not use nuisance and trespass theories to confound state and federal political branches’ legislative and administrative processes by establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-by-case basis under the aegis of federal common law,” says the AGs’ brief, filed May 30 in U.S. District Court for the Southern District of New York.

The brief is in support of a pending motion to dismiss, and a hearing is scheduled for next week. Dismissal arguments have already been heard in the cases filed by San Francisco and Oakland, and defendants like Chevron, Exxon and British Petroleum are awaiting a ruling there by Judge William Alsup.

In the San Francisco and Oakland cases, the same AGs submitted the same arguments. They were opposed by an amicus brief filed by three Democratic colleagues.

Notable on the briefs in support of dismissal is Colorado Attorney General Cynthia Coffman. The Colorado town of Boulder and counties of Boulder and San Miguel have also filed a climate change lawsuit that is currently in state court.

“(T)he questions of global climate change and its effects –and the proper balance of regulatory and commercial activity – are political questions not suited for resolution by any court,” the brief says.

“Indeed, such judicial resolution would trample Congress’ carefully calibrated process of cooperative federalism where states work in tandem with EPA to administer the federal Clean Air Act.”

Defendants and the GOP attorneys general have pointed at a U.S. Supreme Court in the State of Connecticut’s lawsuit against American Electric Power that said federal common law claims – like public nuisance –can’t be used to punish companies compliant with the Clean Air Act.

NYC is trying to get around that ruling by framing the nuisance as “producing” and “marketing” the use of fossil fuels rather than “emitting carbon dioxide.”

“(T)his tactic serves only to show that its claim is too attenuated,” the AGs say.

“Similarly, it requests relief in the form of damages or an injunction to ‘abate the public nuisance and trespass’ rather than outright abatement, but the remedy requested is irrelevant to the displacement issue.

“Ultimately, neither stratagem changes the essential nature of Plaintiff’s claim or of the liability that it is asking the court to impose – liability that could serve as the predicate for myriad remedies in this and future cases.”

The Trump Administration has likewise showed in court filings that it does not support these lawsuits and would prefer to see them dismissed.

A Texas judge has already ruled that the California plaintiffs have contradicted themselves by alleging certain doom caused by climate change in the lawsuits while not disclosing it in bond offerings to potential investors.

He also agreed with Exxon that the energy industry is the target of a coordinated effort by private lawyers, state attorneys general and Rockefeller money.

In addition to Indiana’s Hill and Colorado’s Coffman, these AGs joined in the brief: Oklahoma’s Mike Hunter, Alabama’s Steve Marshall, South Carolina’s Alan Wilson, Arkansas’ Leslie Rutledge, Texas’ Ken Paxton, Utah’s Sean Reyes, Georgia’s Christopher Carr, West Virginia’s Patrick Morrisey, Louisiana’s Jeff Landry, Wisconsin’s Brad Schimel, Nebraska’s Doug Peterson and Wyoming’s Peter Michael.