Another climate fight against Big Oil begins

Source: Anne C. Mulkern, E&E News reporter • Posted: Thursday, June 14, 2018

The debate over making oil companies pay for climate damages cames to a New York City courtroom yesterday.

The city is suing the five largest oil conglomerates for allegedly creating a public nuisance by worsening global warming.

Judge John Keenan in the U.S. District Court for the Southern District of New York will consider the oil companies’ motions to dismiss the case. The companies will argue that the courts aren’t the place to decide climate policy. They claim it’s a political and regulatory question.

The case before Keenan is the latest in a series of lawsuits by municipalities against oil companies. The bulk of them are in California; there are also three in Colorado and one in Washington state. New York is suing BP PLC, Chevron Corp., ConocoPhillips, Exxon Mobil Corp. and Royal Dutch Shell PLC.

Jennifer Wentz, staff attorney at Columbia University, said it will be interesting to see how the cases progress in different venues.

“There’s sort of that opportunity for innovation and developing different arguments in different fora, but also the likelihood that judges will be picking up cues from one another,” she said. Wentz added that with so many cases, there’s the opportunity for rulings that are “outside the box.”

New York City’s lawsuit, like the cases in California, claims that the companies knew about climate change impacts for decades and hid that information. The case differs from those in California in that it claims damages beyond sea-level rise, which is the center point of arguments by San Francisco and Oakland.

“The City already has suffered damage from climate change, including inundation, erosion, and regular tidal flooding of its property,” the New York City suit says. “The City now faces further imminent threats to its property, its infrastructure, and the health and safety of its residents.”

“The City seeks to shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat,” it adds.

Chevron spokesman Sean Comey said in an email that it will argue that “public nuisance litigation is fundamentally ill-suited to address global warming.”

“The U.S. Supreme Court and other courts around the country have repeatedly rejected essentially the same claims brought by the same group of plaintiffs’ attorneys,” he added.

Comey pointed to American Electric Power Co. v. Connecticut, in which states sought to cap greenhouse gas emissions in the power sector. The Supreme Court ruled that corporations cannot be sued for greenhouse gas emissions because EPA regulates those through the Clean Air Act.

“As the Supreme Court explained in AEP, ‘the appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required,'” Comey said. “And that is a task for the political branches, not the courts.”

The city’s claims, if accepted, “would create an unprecedented global warming tort that could be asserted against any company, government, or individual whose activity has contributed to global warming — essentially anyone on Earth,” he added. “That is contrary to federal and state law, as well as common sense.”

The Niskanen Center, a libertarian think tank that advocates taxing carbon, filed a brief supporting New York City.

The group also filed briefs on behalf of Colorado’s Boulder County, San Miguel County and city of Boulder in lawsuits against Exxon Mobil and Suncor Energy Inc.

“Climate change imposes significant damage on both public and private property without the consent of the property owners, and Niskanen believes that the common law — specifically state common law — provides a remedy for such injuries,” it said in the New York amicus brief.

“No matter how useful fossil fuels may be, it is unfair to impose their hidden costs on property owners,” the Niskanen brief added. “Foisting these costs onto property owners not only forces them to subsidize the Defendants, it further distorts markets by eliminating the competitive advantage of forms of energy that do not impose such costs.”

Meanwhile, 15 states filed a brief backing the oil companies. Those states are Alabama, Arkansas, Colorado, Georgia, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming. The same group filed a brief in the California cases initiated by San Francisco and Oakland.

The states argue that allowing the cases to advance “would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials.” The courts shouldn’t allow the suits to confound state and federal oversight “by establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-by-case basis,” the states say.