By Dana Drugmand
Eight briefs were filed on Wednesday in the Ninth Circuit Court of Appeals in support of the California communities trying to keep their climate liability lawsuits against fossil fuel companies in state court. The friend-of-the-court briefs came from government groups, two advocacy organizations, prominent climate scientists, academics who study climate deception and U.S. Sen. Sheldon Whitehouse.
The briefs focus on different aspects of the cases and together argue that state, not federal, court is the appropriate venue for them to be decided.
The lawsuits, filed by the counties of Marin, San Mateo and Santa Cruz and the cities of Richmond, Santa Cruz, and Imperial Beach, had been filed in California court and U.S. District Judge Vince Chhabria ruled they should be tried there, but the companies being sued appealed to move them to federal court. The cases were consolidated by the Ninth Circuit for purposes of deciding jurisdiction.
One of the briefs was filed by several governmental organizations including the National League of Cities and the U.S. Conference of Mayors. “There are no ‘uniquely federal interests’ at stake in this case,” they wrote. “This is not a case about regulating greenhouse gas emissions in other states, or controlling federal fossil fuel leasing programs on public lands, or dictating foreign governments’ climate policies or energy regimes. This case raises textbook claims under state law, seeking to allocate fairly a portion of the significant costs required to protect city and county residents from harms inflicted by Defendants’ products.”
Other briefs were filed by the California State Association of Counties, the nonprofit consumer advocacy organization Public Citizen, the Natural Resources Defense Council and a coalition of eight states: California, Maryland, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington.
“California communities have struggled, and will continue to struggle, with the high costs of managing the devastating effects of climate change,” said California Attorney General Xavier Becerra. “Our states and local governments have an important role in protecting the welfare of our residents, by holding accountable companies which profit from fossil fuels that exacerbate the effects of global warming.”
The suits seek to hold more than a dozen fossil fuel companies accountable for the impacts of climate change, which science has shown is overwhelmingly driven by the burning of fossil fuels. The communities also detail in their complaints decades of deception by the industry around climate change.
The issue under appeal centers around jurisdiction. The communities and their supporters want the suits heard in state court, where they believe they have a better chance of success. Federal precedent has worked against communities seeking relief in federal court and similar cases brought by Oakland, San Francisco and by New York City were dismissed in federal court last year, though the cities are appealing.
The Ninth Circuit’s decision on this batch of California cases will likely influence other climate liability cases filed by municipal governments and one state (Rhode Island). It could also either encourage or discourage new communities from filing similar suits, meaning the stakes are even higher for the industry and communities nationwide.
Briefs Touch on a Range of Issues
Some of the briefs, particularly from the government groups and Public Citizen, focused on the “federal officer” claim. This forms a main argument by the fossil fuel companies, which say that because the federal government issues permits for petroleum production, the companies are acting as “federal officers” and the suits should be heard in federal court.
One group representing all 58 counties in California contested this claim. “The federal government’s involvement in regulating the oil industry is not a sufficient basis for removal jurisdiction and cannot justify tying the hands of local governments and severely limiting the use of a critical tool for protecting local communities,” the California State Association of Counties wrote in its brief.
Public Citizen emphasized that tobacco manufacturers tried to invoke the “federal officer” argument in staving off liability suits against them, a tactic rejected by the Supreme Court. “Self-interested commercial entities acting under compulsion of federal regulation, the Court held, did not ‘act under’ a federal officer within the meaning of the law and were not entitled to invoke the statute,” the brief said.
Other briefs focused on the role that the fossil fuel companies and their trade association allies played in deceiving the public on climate risk.
A group of scholars and scientists detailed the history of fossil fuel companies’ early knowledge of the consequences of climate change arising from their product and their ensuing campaign to misinform the public and policymakers. That was the focus of the brief by Harvard’s Naomi Oreskes and Geoffrey Supran, who published a study in 2017 on Exxon’s history of misleading communications on climate.
In his brief, Sen. Whitehouse took aim at the U.S. Chamber of Commerce, which filed an amicus brief supporting the fossil fuel companies. He cites the Chamber’s brief arguing that meaningful action on climate change must come from the executive or legislative branches, and then Whitehouse detailed how the Chamber has actively worked to block climate regulations or policies through those branches.
“As a United States Senator since 2007, I have had a front row seat from which to observe the Chamber’s remorseless efforts to thwart any climate action in Washington,” Whitehouse wrote, citing the Chamber’s lobbying against the landmark Waxman-Markey cap-and-trade bill and lawsuits challenging regulatory actions by the Environmental Protection Agency.
A group of leading climate scientists and scholars—including Mario Molina, Michael Oppenheimer, Susanne Moser, Donald Wuebbels, Gary Griggs, Peter Frumhoff, and Kristina Dahl—urged the court in their brief to base its decision on the latest science, which shows the unavoidable climate change-related adaptation expenses communities are facing.
“As courts address cases involving the damage to coastal communities caused by global warming and now inevitable sea level rise, we feel it is essential for judicial decisions to be based on an understanding of the relevant science and the unavoidable adaptation expenses these communities are facing,” they wrote.