Federal Judge Dismisses Cities’ Suit Against Oil Companies Over Costs of Climate Change

Source: By John Schwartz, New York Times • Posted: Tuesday, June 26, 2018

Students in San Francisco rallied for clean energy outside City Hall in February.Jeff Chiu/Associated Press

A federal judge on Monday threw out a closely watched lawsuit brought by two California cities against fossil fuel companies over the costs of dealing with climate change. The decision is a stinging defeat for the plaintiffs, San Francisco and Oakland, and raises warning flags for other local governments around the United States that have filed similar suits, including New York City.

The judge, William Alsup of Federal District Court in San Francisco, acknowledged the science of global warming and the great risks to the planet, as did the oil and gas companies being sued. But in his ruling, Judge Alsup said the courts were not the proper place to deal with such global issues, and he rejected the legal theory put forth by the cities.

“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case,” Judge Alsup wrote in a 16-page opinion.

The cities wanted the defendants — including BP, Chevron, ConocoPhillips, Exxon Mobil and Royal Dutch Shell — to help pay for projects like protecting coastlines from flooding.

But Judge Alsup said the issues would more properly be handled by the other two branches of government. “The court will stay its hand in favor of solutions by the legislative and executive branches,” he wrote.

The Chevron oil refinery in Richmond, Calif. Chevron was among the defendants in the suit.Paul Sakuma/Associated Press

A business group that has been highly critical of the lawsuits, the National Association of Manufacturers, expressed satisfaction with the dismissal of the case. “From the moment these baseless lawsuits were filed, we have argued that the courtroom was not the proper venue to address this global challenge,” said the group’s chief executive, Jay Timmons.

Judge Alsup said that climate change was an issue of global importance but that the companies were not solely at fault. “Our industrial revolution and the development of our modern world has literally been fueled by oil and coal,” he wrote. “Without those fuels, virtually all of our monumental progress would have been impossible.”

In light of that, he asked: “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? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?”

A Chevron executive sounded a similar note in response to the decision. “Reliable, affordable energy is not a public nuisance but a public necessity,” said R. Hewitt Pate, vice president and general counsel for Chevron.

The cities had relied 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 use nuisance claims in lawsuits about climate change have been heard under federal law in cases such as American Electric Power v. Connecticut, but none have succeeded. In a unanimous 2011 decision, the Supreme Court said that the Clean Air Act displaced the federal common law of nuisance, leaving enforcement and regulation to the Environmental Protection Agency.

The cases brought by San Francisco, Oakland and other cities and counties have attempted to use the nuisance doctrine at the state level, working from the theory that state common law has not been similarly displaced. The fossil fuel companies have tried to move the cases to the federal courts under federal law.

Judge Alsup, in previous stages of the litigation, suggested that the federal courts could still hear such cases. He kept the suits filed by San Francisco and Oakland before him, and ordered an unusual “tutorial” on climate change to familiarize himself with the scientific issues.

But in a different courtroom in the same building, Judge Vince Chhabria — also of Federal District Court in San Francisco — sent similar cases involving San Mateo and Marin Counties and the City of Imperial Beach to state court. That litigation is pending.

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, said that in deciding the courts were an improper venue for the case, Judge Alsup “focused on the need to balance the benefits of energy production against the harms of climate change, a balancing act carried out not only by the U.S. government but also by governments all around the world.” He said it was too early to tell whether the decision would persuade other judges hearing similar cases around the country.

John Coté, a spokesman for the San Francisco city attorney, said the city was considering its options. “This is obviously not the ruling we wanted, but this doesn’t mean the case is over,” he said. “We’re reviewing the order and will decide on our next steps shortly.”

Mr. Coté added that the city agreed with Judge Alsup on one important point. “We’re pleased that the court recognized that the science of global warming is no longer in dispute,” he said. “Our litigation forced a public court proceeding on climate science, and now these companies can no longer deny it is real and valid. Our belief remains that these companies are liable for the harm they’ve caused.”

John Schwartz is part of the climate team. Since joining The Times in 2000, he has covered science, law, technology, the space program and more, and has written for almost every section. @jswatzFacebook