A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has reversed a U.S. District Court’s June 2018 ruling dismissing climate change lawsuits brought by the cities of Oakland and San Francisco against five oil companies.
Federal courts are the wrong forum to answer the questions at issue, the court panel ruled, potentially putting the case back in California state court.
The Ninth Circuit panel’s unanimous ruling follows similar rulings by federal courts remanding climate lawsuits to state courts in Colorado, Maryland, and Rhode Island.
Alleged Harms
In 2017, Oakland and San Francisco sued BP, Chevron, ConocoPhillips, ExxonMobil, and Shell for damages, including damage from rising seas, and the costs to cities responding to the changing climate, which they argued were caused in part by the oil companies’ production and sale of fossil fuels. The cities claimed the oil companies violated state nuisance laws by marketing and selling products they knew were contributing to dangerous climate change, and that oil companies sought to delay emissions regulations by discrediting climate change research.
Led by Indiana Attorney General Curtis Hill, Republican attorneys general from 15 states filed a friend-of-the-court brief in the U.S. District Court for the Northern District of California asking the presiding judge, William Alsup, to dismiss the two cities’ climate liability lawsuits against the oil companies.
The AGs argued whether and how to address climate change is best left to the legislative branch of government, not the judiciary, and that the claims could “jeopardize our national system of cooperative federalism” by allowing certain cities or states to dictate energy and environmental policies to the nation as a whole.
‘Balancing of Policy Concerns’
Alsup agreed with the AGs’ reasoning, dismissing the climate liability lawsuit brought by the two cities in June 2018.
“[P]laintiffs’ claims require a balancing of policy concerns. … Importantly, ‘[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns,’” Alsup stated in his ruling. “We must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal.
“Without those fuels, virtually all of our monumental progress would have been impossible,” wrote Alsup. “All of us have benefitted [and] having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”
Question of Jurisdiction
The Ninth Circuit’s May 26 decision, written by Judge Sandra Ikuta, said Alsup erred because the cities’ main claims pertained to state issues not related to or overridden by federal law.
The Ninth Circuit panel said the plaintiff cities had carefully crafted their lawsuits to avoid triggering federal jurisdiction, thus Alsup should never have accepted the case. In particular, the cities assert they are suing over “marketing practices and statements by the oil companies,” not primarily over carbon dioxide emissions.
“The question whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question, but it does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction,” the Ninth Circuit panel ruled.
Because the federal district court never had jurisdiction in the first place, the panel ruled, the case should be allowed to proceed in the California state court unless other grounds for dismissal are found.
Instead of returning the case directly to state court, the Ninth Circuit sent it back to Alsup to determine whether there are other grounds for his court to have jurisdiction over the case. Absent such a finding, the panel ruled, the case must be returned to the state court.
Sterling Burnett, Ph.D. (hsburnett@heartland.org) is the managing editor of Environment & Climate News.
Internet Info
Indiana Attorney General Curtis Hill et al., “State AGs’ Amicus Brief in Oakland/San Francisco Climate Lawsuit,” April 19, 2018: https://www.heartland.org/publications-resources/publications/state-ags-amicus-brief-in-oaklandsan-francisco-climate-lawsuit
