The Climate Docket

Colorado Climate Case Belongs in State Court, Tenth Circuit Rules

Filed Under: Colorado Lawsuit, Liability Litigation

By Karen Savage

The Tenth Circuit Court of Appeals upheld a lower court ruling that a Colorado climate liability lawsuit against ExxonMobil and Suncor belongs in state court. 

A three-judge panel decided unanimously, avoiding a conflict with other circuit rulings —at least for now—and reducing the likelihood that the Supreme Court will step in at this stage. Chevron and other companies have asked the high court to review a similar ruling by the Fourth Circuit in a case filed against them by Baltimore. Had the circuits come to different conclusions instead of agreeing these cases should be in state court, the Supreme Court might have felt compelled to weigh in.

Instead, the communities filing these suits have won a wave of victories in keeping them in state courts. The fossil fuel companies named in nearly two dozen of these lawsuits have tried repeatedly to get the cases heard in federal court, where they have historically had a better chance at shaking them. 

So far, they’ve struck out. 

In addition to the Fourth Circuit’s Baltimore ruling, the Ninth Circuit similarly sent a set of suits filed by California communities back to state court. 

The First Circuit is also considering whether Rhode Island’s lawsuit against many of the same companies should stay in state court after a district court ordered it there. 

“Federal courts have consistently ruled that these climate cases belong in state courts—which makes sense because these cases are about harms experienced at the local level,” said Marco Simons, general counsel of EarthRights International, which is representing the Colorado municipalities. 

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Climate Liability Cases, Bolstered by Science, Gain Momentum, Panel Says

Filed Under: California Climate Lawsuits, Liability Litigation

By Karen Savage

Marin County might not seem the most obvious place to launch a climate liability suit, but this coastal community in Northern California has already begun to battle dangerous levels of sea level rise, increased flooding and other impacts of climate change. A single storm caused more than a million dollars in damage last year.

More than 12,000 homes, businesses and other institutions with an assessed property value of nearly $16 billion will be at risk from tides and surge flooding by the end of the century, according to a vulnerability assessment the county completed in the spring of 2017.

“It made crystal clear that the cost of trying to protect the assets of risk from rising seas and more severe storms, and the human anguish over those that will be lost will be shocking and crippling for our residents,” Marin County Supervisor Dr. Kate Sears said.

Sears spoke during an online panel discussion on climate liability Thursday, an event sponsored by the Stanford Environmental & Natural Resources Law and Policy Program and the Center for Climate Integrity.

It didn’t take long to convince Sears that Marin County should file a climate liability suit. Sears is a former civil prosecutor for the California attorney general’s office who led a team of lawyers that secured a $3.8 billion settlement with predatory lenders.,

In 2017, Marin County joined what is now more than two dozen communities in suing fossil fuel companies to hold them accountable for the costs of climate change. The county’s suit,  against Exxon, Chevon, Shell, BP, ConocoPhillips and more than a dozen other fossil fuel companies, includes claims for public nuisance, strict liability for failure to warn, strict liability for design defect, private nuisance, negligence, negligent failure to warn, and trespass. It is seeking compensation for current as well as future damages.

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Big Oil: Ninth Circuit Should Rethink Decision to Green-Light Oakland, SF Climate Suit

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

By Karen Savage

Exxon, Chevron, Shell, BP, and ConocoPhillips have asked the Ninth Circuit Court of Appeals to reconsider its decision to resuscitate climate lawsuits filed against them by Oakland and San Francisco.

The oil giants say a three-judge panel “overlooked or misapprehended several key issues” relevant to its arguments and “decided them in a manner that conflicts” with its own previous rulings and those of other circuit courts. 

“This case should be reheard by the panel or en banc and the district court’s judgment affirmed,” Chevron attorney Ted Boutous wrote in a petition submitted to the court on Wednesday. 

Both rehearings (by the same panel of judges) and en banc hearings (by a larger group of the circuit’s judges) are granted only in exceptional circumstances, such as potential errors of law made by the panel or to address the impact of more recent Supreme Court decisions.

Oakland and San Francisco filed suit in California state court against BP, Chevron, ConocoPhillips, ExxonMobil and Shell in 2017, alleging that the companies’ production and marketing of fossil fuels violated public nuisance laws because the companies knew the products’ detrimental effect on the climate and sold them anyway.

The cases were moved to federal court by the companies and later dismissed by U.S. District Court Judge William Alsup. 

The three-judge panel reversed Alsup’s decision in May. Because the lower court had initially ruled on only one of the fossil fuel defendants’ several arguments for leaving the cases in federal court, the panel returned the case to district court, instructing Alsup to evaluate those arguments.

An en banc hearing must be approved by a majority of the Ninth Circuit’s 29 judges. If approved, a panel of 11 judges would then review the ruling.