By Karen Savage
Six California municipalities are opposing an attempt by the fossil fuel companies they are suing for climate damages to consolidate their suits with similar suits by the cities of San Francisco and Oakland. The fossil fuel companies filed a motion last week in the Ninth Circuit Court of Appeals asking the court to have one joint hearing to decide whether all the climate liability suits should be heard in federal or state court.
The communities—the counties of Marin, San Mateo and Santa Cruz, along with the cities of Imperial Beach, Santa Cruz and Richmond—won an earlier ruling by U.S. District Judge Vince Chhabria, who decided the suits belong in state court. San Francisco and Oakland recently had their cases dismissed after U.S. District Judge William Alsup ruled that their cases, which involve claims similar to those of the other municipalities, belong in federal court. San Francisco and Oakland have appealed that ruling to the Ninth Circuit.
The six municipalities argue that it is “highly unlikely that the two appeals will involve any overlap, other than with respect to the near-frivolous issue of federal-officer jurisdiction removal.”
Under the federal officer removal statute, a federal court has jurisdiction over a civil action that is directed at the United States or any federal official. The companies have argued that because they sold or extracted fossil fuels under government contract at some point that means they operated as federal officers. In his ruling, Chhabria rejected that argument and characterized an appeal based on the statute as “dubious.”
The six municipalities filed suits in 2017 and 2018 against the companies for their role in contributing to climate change-driven sea level rise that is damaging their communities. They are sometimes referred to as the Chhabria Appeals because Chhabria ruled last year that their suits should remain in state court.
Chhabria said federal common law cannot govern the plaintiff’s nuisance claims, pointing to a ruling in Kivalina v. Exxon. The fossil fuel defendants have appealed Chhabria’s decision to the Ninth Circuit. Briefing by both sides concluded in March and a hearing date is expected to be set shortly.
Oakland and San Francisco filed suit against BP, Chevron, ConocoPhillips, ExxonMobil and Shell in 2017, alleging that the companies’ production and marketing of fossil fuels, which drives climate change, has created an unlawful public nuisance because the companies knew the products’ dangers and proceeded to sell them anyway.
The oil giants moved the case to federal court, but unlike Chhabria, Alsup ruled last year that the suits filed by San Francisco and Oakland, sometimes referred to as the Alsup Appeals, should remain in federal court and few months later dismissed them entirely.
In his ruling, Alsup said that to allow Oakland and San Francisco to seek compensation for damages was equivalent to regulating greenhouse gas emissions. He also said the problem of climate change is too vast to hold just five companies liable and said the executive and legislative branches of government are better suited to solve the climate crisis. The two cities maintain their claims are covered under California’s public nuisance laws and should remain in state court. They have appealed to the Ninth Circuit. Briefing concluded last week and they are also awaiting a hearing date.
While the underlying lawsuits are similar, the issues raised in the appeals process are very different, said the six municipalities in their opposition motion.
They contend that the Oakland and San Francisco cases focus on Alsup’s more complex order granting the defendants motion to dismiss for failure to state a claim and for lack of personal jurisdiction. The six municipalities say their appeal will focus specifically on the scope of appellate jurisdiction and federal officer jurisdiction.
In their filing, the six municipalities suggest scheduling oral arguments on issues related to the federal removal statute in their case for later this year, pushing arguments in the Oakland and San Francisco case for early 2020, after the court has issued a ruling on the federal removal statute.