The Climate Docket

Trade Group Floats ‘Model’ Bill To Shield Oil Industry from Climate Lawsuits

Filed Under: Access to Courts, Liability Waivers, State Legislation

By Karen Savage

A model bill written by the American Legislative Exchange Council (ALEC), ostensibly in response to the COVID-19 crisis, could have big implications for climate liability litigation.

The group, whose membership includes several oil majors as well as trade associations, lobbying groups and PR firms associated with the fossil fuel industry, produced the model legislation for state governments. It doesn’t specifically mention the ongoing pandemic, but it limits civil liability for corporations and their employees after a declared disaster or public emergency, provided the company “complied with or made a good faith effort” to comply with federal, state or local regulations. 

As currently written, the model Liability Protection for Employers in a Declared Disaster or Public Emergency Act would not apply retroactively, but if passed by state legislators, could prohibit the filing of future climate-related litigation in municipalities that declare climate emergencies.

At least 98 U.S. municipalities have declared climate emergencies, including several that have already filed climate liability lawsuits against fossil fuel companies attempting to hold them accountable for their role in climate change.

“It’s possible that was designed to use this crisis in order to thwart future lawsuits about the devastating climate changes that are underway or other liability in in the midst of other crises that may be caused by those very businesses and their decisions,” said Lisa Graves, founder and executive director of True North Research, a policy research group.

ALEC, which has been called a “corporate bill mill,” writes and shares model bills, or policy, with state legislators, who are encouraged to copy and paste wording into bills they sponsor. Once bills are introduced, ALEC representatives help state lawmakers with background research and work to strategize ways to get the proposed legislation passed into state law.

Oil majors Chevron, Marathon, and Koch Industries—which have all been named in climate-related litigation—are current ALEC members, as are several railroads, public relations firms, trade associations, lobbying groups and others associated with the fossil fuel industry.

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Ninth Circuit: California Climate Suits Stay in State Court

Filed Under: California Climate Lawsuits, Latest News, Liability Litigation

The Ninth Circuit Court of Appeals has rejected a request by Chevron, Exxon, Shell, Citgo, ConocoPhillips and more than 30 other fossil fuel companies to rethink its ruling earlier this year that a set of California climate liability suits belong in state court.

A three-judge panel of the appellate court in May returned to state court a slate of climate liability suits filed by the cities of Imperial Beach, Richmond, and Santa Cruz, as well as the counties of Marin, San Mateo, and Santa Cruz. That’s where the municipalities  initially filed the cases in 2017,  alleging violations of state public nuisance laws and seeking compensation for climate change-related damages.

“The panel has unanimously voted to deny appellants’ petition for rehearing en banc,” the court wrote in the order, issued on Monday. “No judge has requested a vote on whether to rehear the matter en banc.”

A request for an en banc hearing would need approval by a majority of the Ninth Circuit’s 29 judges to proceed and the appeal would then be re-heard by a panel of 11 judges. 

Exxon, Chevron, Shell, BP, and ConocoPhillips have also asked the Ninth Circuit to reconsider its reversal of a lower court’s dismissal of climate liability lawsuits filed against them by Oakland and San Francisco. A decision on that request is still pending.

Exxon Pushes for Dismissal of Texas Investor Fraud Suit

Filed Under: Latest News

By Karen Savage

Exxon Mobil says a securities fraud suit against it should be dismissed because it includes claims that the New York Attorney General’s office failed to prove in a separate climate fraud lawsuit against the oil giant.

Exxon is facing the lawsuit Ramirez v. Exxon in the U.S. District Court for the Northern District of Texas, accusing the company of lying to investors about the risks posed to the company by climate change. Exxon asked Judge Ed Kinkeade to reconsider his rejection of its motion to dismiss. That motion, filed in 2018, also alleged that the suit,, a class action suit filed in 2016, mimicked accusations made by the New York Attorney General’s office.

Shortly after the motion was denied, Exxon tried to persuade Kinkeade to reconsider the denial, arguing that he had erred in his decision.  Kinkeade was not convinced. He also brushed aside a request by Exxon that would have allowed his decision to be immediately appealed. 

In its latest attempt to shake the case, Exxon contends that Kinkeade initially allowed the case to continue because he, along with the plaintiffs, relied on the New York AG’s allegations to have been made “in good faith and with evidentiary support.”  

Exxon points out that since then, New York Supreme Court Judge Barry Ostrager has ruled that the NY AG’s office failed to prove that the company deceived investors.

“Now that Justice Ostrager has held that NYAG’s allegations of misconduct are meritless, plaintiff can no longer plausibly assert that those same discredited allegations support its securities claims,” attorneys for Exxon wrote in the motion.

Exxon has also argued that the investors should be denied class certification. Rulings in both motions are expected in the coming weeks.

Rhode Island Backs Lawsuit Vs. Shell Over Climate Impacts

Filed Under: Latest News, Liability Litigation, Rhode Island Lawsuit

By Karen Savage

Shell cannot stop a lawsuit accusing it of failing to protect its Providence Terminal from the impacts of climate change, according to an amicus brief filed Thursday by the state of Rhode Island, which was asked by the U.S. District Court to weigh in.

The suit was first filed against Shell in 2017 by the Conservation Law Foundation (CLF), an environmental law and advocacy group. The suit alleges the oil giant has known for decades about the dangers of not protecting its facilities from the growing risks associated with climate change.

During the suit’s briefing period, the court asked the state to submit its opinion on whether the suit interferes with its ability to make policy. In the brief, the AG’s office said the lawsuit does not interfere with policy and the court should decide citizen-filed lawsuits such as this one.

CLF claims Shell is violating the conditions of its Clean Water Act permits by failing to prevent and monitor unlawful discharges of pollution and is failing to adequately plan for increasing amounts of stormwater runoff caused by climate change. The company’s Providence Terminal is located at the head of Narragansett Bay and is vulnerable to flooding due to sea level rise and increasingly severe storms. 

The group also alleges that the terminal is in violation of the federal Resource Conservation and Recovery Act, which regulates hazardous waste.

Shell has argued the suit is an attempt to regulate its operations, which it contends is a role for the U.S. Environmental Protection Agency (EPA) or the Rhode Island Department of Environmental Management (RIDEM).

“While the permitting function lies exclusively with the agencies, enforcement of the permit terms is shared by the agency and the citizen through the district courts,” said the Rhode Island AG’s office and RIDEM in the brief, which was filed Thursday.

The Rhode Island Attorney General’s office in 2018 filed a separate lawsuit against 21 companies—including oil giants Exxon, BP, Shell, Chevron and ConocoPhillips—alleging that they knowingly contributed to climate change and failed to adequately warn Rhode Island citizens about the risks posed by their products.

CLF filed a similar suit against ExxonMobil in 2016, alleging that the oil giant is failing to protect its Everett, Mass. oil terminal from the impacts of climate change.