By Ucilia Wang
Three oil companies on Wednesday asked a federal judge to toss out a climate lawsuit by New York City, arguing that the city’s claims are false and involve issues beyond the court’s jurisdiction.
Lawyers for the companies and the city appeared before U.S. District Court Judge John F. Keenan in Manhattan to debate whether the case has legal standing to continue. The city, which filed the lawsuit against five major oil companies in January, contends that fossil fuel companies should help foot the city’s escalating costs of addressing climate change.
It could take Keenan several months to decide on the oil companies’ motion to dismiss.
Three of the five defendants—ExxonMobil, Chevron and ConocoPhillips—filed a motion to dismiss, while Shell and British Petroleum have not. The city said in the lawsuit and argued in court that the five companies including Shell and BP, have long known that their products are responsible for global warming, which leads to rising sea level and more severe storms and flooding.
The city already plans to spend at least $20 billion to fortify itself against those climate impacts, such as building levees and seawalls and moving or strengthening critical infrastructure.
New York’s is one of 13 cases currently being pursued in various courts to hold the fossil fuel industry accountable for the impacts of climate change.
Keenan grilled both sides and wondered why no arguments have been made about the city’s role in climate change, such as using police cars and fire trucks that run on fossil fuels.
“The motion to dismiss says nothing about New York City’s culpability,” Keenan noted. Later, he added, “Nobody says New York City doesn’t have clean hands.” Keenan also asked whether the city has invested in fossil fuel companies, a question that the city’s attorneys said they couldn’t answer right then. (When the city announced its lawsuit, it also vowed to divest from all fossil fuel holdings.)
Keenan also pointed out the conflicting rulings by two federal judges in two sets of climate cases in California earlier this year. One of them, U.S. District Judge Williams Alsup opted to keep the lawsuits filed by San Francisco and Oakland in federal court while the second judge, Vince Chhabria, sent the suits filed by San Mateo and Marin counties and the city of Imperial Beach cases to state court.
If Keenan doesn’t dismiss the case, he faces the question of whether New York’s claims should fall under state or federal common law. Keenan also will consider whether the issues are already governed by federal legislation or should otherwise be addressed by Congress, not the court.
The fossil fuel companies’ arguments were similar to the ones they have used in the California cases.
The attorneys for the three defendants in the New York case, Chevron, ConocoPhillips and Exxon, said the suit has no merit because it’s really about greenhouse gas emissions created by people who use fossil fuels, not about those who extract and sell fossil fuels. And since the case is really about air pollution, which is a global problem, the issues raised by the city should be addressed by the federal Clean Air Act or by Congress.
“It’s an executive matter, a Congressional matter about government policy,” Theodore Boutrous, Jr., an attorney for Chevron, said in court.
He added that Congress wouldn’t see any merit in the city’s attempt to hold fossil fuel companies accountable because the federal government supports oil and gas production.
The attorney for ConocoPhillips, John Savarese, made a common argument when he told Keenan that a small group of companies can’t be responsible for a complicated and global problem in which the cause and effect is hard to establish.
“You have a far far more tenuous and torturous link from oil production to sea level rise,” Savarese said.
The attorney for the city, Matthew Pawa of Hagens Berman, said the link between fossil fuels and climate impacts is well established by scientists and much evidence has surfaced in recent years showing that the oil companies have been aware of those links for decades.
“It’s not about the number of links but whether the link is speculative, and ours is based on science and points out what the companies knew” about the public dangers of fossil fuel consumption, Pawa said.
“The defendants intended for consumers to use fossil fuel products,” he added.
Pawa, whose firm is also involved in the San Francisco and Oakland suits, also argued that the case is not about air pollution but the harmful effects from the production of oil and gas. He pointed out that Clean Air Act deals with emissions, but not the result of producing and selling fossil fuels on the climate.
Pawa went on to say that the case should be decided under the state common law, which covers the harm caused by the manufacturing and sale of a product. He emphasized that the city is seeking money to reduce its financial burden and is not asking the court to consider who is responsible for energy policy or whether the defendants should change their business practices.
New York’s lawsuit now awaits Keenan’s ruling, the first that will come from outside of a California courtroom.
Recently, other communities have joined in the movement to sue fossil fuel companies, including three in Colorado that jointly filed the first suit by inland communities. Most recently, King County, Wash., which encompasses Seattle, filed a suit in Washington State court.