By Karen Savage
The Ninth Circuit Court of Appeals’ recent revival of two climate liability suits in California “is irrelevant” to New York City’s quest to keep its similar suit alive, Chevron told the Second Circuit in a letter on Wednesday.
The Second Circuit is considering New York City’s appeal of a federal judge’s decision to throw out its liability suit against BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell. New York argues that the judge misinterpreted its claims when he ruled it was displaced by the Clean Air act.
The city, which is seeking billions in damages to cover infrastructure improvements needed to protect its residents from the increasing effects of climate change, maintains the suit is not an attempt to regulate greenhouse gas emissions, as the companies claim. The city says it is an attempt to hold the companies liable for climate change-related damage to the city. The suit includes federal claims of public nuisance, private nuisance and trespass and seeks monetary damages to help pay for the costs of protecting the city.
The companies had relied on a decision by U.S. District Court Judge William Alsup to dismiss cases by San Francisco and Oakland, but that decision was overturned by the Ninth Circuit.
The Ninth Circuit, however, did not consider the issue of whether federal law applies, which is what New York is pressing. It ruled only that the companies were not acting as federal officers when they produced their product, a determination that would have freed them from liability.
“While the Ninth Circuit did not reach the question of whether federal common law applies—writing that it was ‘not clear’ that it did—this vacatur provides another reason why the court should not regard [Alsup’s decision] as persuasive here,” wrote John Moore, an attorney for the city, in a letter sent to the court after the appellate court’s decision was released last month.
Chevron contends that the ruling “says nothing about the key question in this appeal—namely, whether federal common law governs tort claims alleging harms related to global climate change.”
The city “fails to explain how the Ninth Circuit’s silence on the relevant issues has any bearing on the persuasiveness for the lower court’s reasoning,” wrote Chevron attorney Theodore J. Boutrous Jr. in the letter.
Oral arguments in the appeal were heard in December and a decision is expected shortly.