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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. 

S.F., Oakland Argue to Ninth Circuit That Their Climate Suits Belong in State Court

Filed Under: California Climate Lawsuits, Liability Litigation

By Karen Savage

San Francisco and Oakland are arguing that a U.S. District Court judge erred when he denied a motion to return their climate liability suit to state court and also erred in its subsequent dismissal of the suit, according to a brief filed by the cities in the Ninth Circuit Court of Appeals on Monday.

The cities maintain that Judge William Alsup improperly rejected the cities’ argument that their claims arise under California public nuisance law when he ruled in February 2018 that federal common law applies in climate liability cases. The briefing process is now complete in the cities’ appeal and the court is expected to announce its decision, or potential next steps in the case in the coming months.

The cities say that Alsup mischaracterized their claims and in their brief, reiterated that they are not seeking to regulate the companies, impose restrictions on their greenhouse gas emissions or prevent companies from producing fossil fuels.

“While Defendants are entitled to challenge personal jurisdiction and the sufficiency of the People’s public nuisance claims, they must do so in the proper forum, based on the actual allegations of the People’s public nuisance claims, they must do so in the proper forum, based on the actual allegations of the People’s complaint and the well-established elements of California public nuisance law,” the cities wrote. 

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 are the main driver of climate change—has created an unlawful public nuisance because the companies knew the products’ dangers and proceeded to sell them anyway. 

The cities, whose suits have since been consolidated, are asking the companies to pay for sea walls and other infrastructure needed to protect the city from rising sea levels, frequent and more severe storms, and other impacts of climate change.

They contend that the companies are responsible because they have known for decades that their products are the overwhelming cause of climate change, which will damage the cities’ public infrastructure. They also say that the oil companies deliberately misled the public through “large scale, sophisticated advertising and communications campaigns to promote pervasive fossil fuel usage.”

After the suits were filed in California court, the defendants removed the suits to federal court and Oakland and San Francisco have been fighting to return them to state court, where they were filed. The cities maintain their claims are covered under California’s strong public nuisance laws. Last year Alsup denied a motion to return the suits to state court and few months later dismissed the suits from federal court.

In his dismissal, Alsup said the companies were not liable under a public nuisance claim because their conduct was not unreasonable and because everyone has benefitted from fossil fuels. He said that to allow the cities to seek compensation for damages was equivalent to regulating greenhouse gas emissions.

Alsup also said the problem of climate change is too vast to hold just five companies liable. He said the executive and legislative branches of government are better suited to solve the climate crisis.

Similar suits filed by the counties of Marin, San Mateo, Santa Cruz and the cities of Imperial Beach, Santa Cruz, Richmond have been consolidated separately and are awaiting hearings by the Ninth Circuit Court of Appeals to decide whether the suits should be heard in state or federal courts.

California Communities Fight Oil Companies’ Attempts to Consolidate Climate Suits

Filed Under: California Climate Lawsuits

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.

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