By Karen Savage

In its latest brief trying to keep alive its climate liability suit against five major oil companies, New York City reiterated that its lawsuit is about forcing them to pay to protect the city and its residents from the impacts of climate change, not about regulating greenhouse gas emissions.

“Emissions are part of the causal chain by which defendants’ intentional conduct results in severe harm to the city, but the city’s claims will not require a court to set an acceptable level of emissions either to assess liability or to provide a remedy,” the city wrote in the brief, filed Monday in the Second Circuit Court of Appeals.

New York is appealing the cases’s dismissal by U.S. District Judge John Keenan last June, when Keenan ruled that the executive and legislative branches, not the courts, are the proper forum to address harms resulting from climate change and greenhouse gas pollution. He said the city’s claims are covered under federal law because they involve greenhouse gas emissions that cross state lines, but that the Clean Air Act takes legal precedence because it governs emissions.

New York filed its lawsuit suit against BP, ConocoPhillips, Chevron, ExxonMobil and Royal Dutch Shell in January 2018, claiming public nuisance, private nuisance and trespass and seeking to force the oil giants to help pay for infrastructure improvements needed to protect its more than 8.5 million residents from climate impacts.

The city appealed Keenan’s dismissal in November, contending that Keenan misunderstood its allegations and erred when he concluded that various federal law doctrines barred its claims. It maintains that its claims aren’t displaced by the Clean Air Act and the suit should not have been dismissed by the lower court.

In their opening appellate brief, the defendants—the five largest investor-owned fossil fuel companies as measured by their contributions to global warming—avoided the question of liability, emphasizing the enormity of global warming and consumers’ role in the burning of fossil fuels.

The oil giants also contend that if New York were awarded damages, the court would need to consider not only damages in this suit, “but also the cost of compensating every other plaintiff that has brought or could bring” similar climate liability suits. The defendants said if that were to happen, court-ordered damages would act as an injunction by putting them out of business.

The city said such a determination would not put the oil companies out of business, but would shift the burden of protecting the city back onto the companies it says have overwhelmingly caused the crisis.

“This remarkable claim is unsupported, speculative, and more than a little improbable given the companies’ massive profitability,” the city said, adding that the issue should not be resolved in a motion to dismiss.

The city said the defendants, which together account for 11 percent of all carbon and methane from industrial sources, have not only harmed the city, but have also undertaken “extraordinary efforts to deceive the public about the climate impacts of fossil fuels and to promote consumption at levels they knew were harmful.”

“No one has done more than defendants to exacerbate the harm or to prevent others from learning of the gravity of the threat,” the city said, adding that the oil companies were well aware of each other’s actions and at times worked in close coordination to deceive the public.

“Rather than mitigate the harm, defendants sought to protect their own interest, spending millions of dollars leading a public-relations strategy for the fossil-fuel industry to discredit the scientific consensus on global warming, downplay the risks of climate change, and portray their products as environmentally responsible.”

By Karen Savage

The Trump administration is supporting the five oil companies being sued by New York City to pay for damages related to climate change, filing a friend-of-the-court brief asking the Second Circuit Court of Appeals to uphold the dismissal of the case.

The federal government contends in the brief that the city’s claims against Exxon, BP, Shell, ConocoPhillips and Chevron shouldn’t be decided by a state court. It argues the Clean Air Act prevents the city from pursuing nuisance claims because the pollution that causes global warming originates from outside the state.  It also argues that the claims should not be considered in a federal court because that would violate the separation of powers guaranteed by the Constitution.

The Trump administration also says that New York’s claims “interfere with the conduct of foreign policy and regulation of foreign commerce” and have “great potential for disruption or embarrassment for the United States in its international relations that cannot be outweighed by the relative interests of New York state.”

The city filed the case against the five oil giants in January 2018 and it was dismissed by U.S. District Court Judge John Keenan last July. The city appealed that decision to the Second Circuit.

“We are disappointed but not surprised that the Trump administration has chosen to weigh in against the City in this case,” said a spokesman for the New York City Law Department. “We look forward to making our case to the Second Circuit as we seek to hold fossil fuel companies accountable for the costs the City is incurring in responding to climate change.”

Keenan ruled in July that the courts are not the proper forum to address harms resulting from climate change. He said issues stemming from greenhouse gas pollution should be tackled by the  executive and legislative branches.

The city’s appeal argues that Keenan “misunderstood the city’s allegations and, on the basis of that misunderstanding, erroneously concluded that various federal law doctrines barred the city’s claims.”

New York City’s complaint includes claims of public nuisance, private nuisance and trespass and seeks monetary damages from the five oil giants to help pay for the costs of protecting the city from climate impacts. The city argues the state law claims of nuisance and trespass are to “obtain compensation for costs of redressing the effects of global warming,” and says the industry has known for decades that lawful use of their products would result in harm. The city emphasized the claims are not about regulating emissions.

The oil companies maintain that the city’s claims involve domestic greenhouse gas emissions, which are covered under the Clean Air Act. They say New York City—and it’s residents—“have long consumed Defendants’ products and have thus willingly contributed to greenhouse gas emissions” that have caused climate change.

Additional friend-of-the-court—or amicus—briefs in support of the oil companies have recently been filed by the National Association of Manufacturers, the U.S. Chamber of Commerce and a coalition of Republican attorneys general.

Then-New York Attorney General Barbara Underwood, along with eight other Democratic state attorneys general submitted a brief in support of the city in November, as did a coalition of local government associations, including the National League of Cities, the U.S. Conference of Mayors and the International Municipal Lawyers Association.  

Both sides have requested oral arguments, which will be scheduled for later this year.

By Dana Drugmand

The five oil and gas companies sued by New York City last year over climate change-related damages doubled down on their argument that courts should not be in the business of regulating global warming. They argued their case anew in a brief they filed to the Second Circuit Court of Appeals last week.

The brief rehashes many of the arguments that successfully convinced U.S. District Judge John Keenan to dismiss the city’s case last year, emphasizing the “sweeping” nature of climate change and sidestepping the question of liability for damages caused, which was the focal point of the lawsuit.

Defendants BP, Chevron, ConocoPhillips, ExxonMobil and Shell emphasized instead the expansive nature of global warming and consumers’ role in the burning of fossil fuels. “Plaintiff seeks relief for alleged injuries resulting from Defendants’ worldwide fossil-fuel production and the global greenhouse gas emissions of countless actors, including New York City and its residents,” they wrote in the brief.

The city’s appeal, however, emphasizes that its complaint is not about international conduct or regulating emissions and indeed falls under state common law. The city said that Keenan “dismissed a complaint that the City of New York never filed.” As the city’s brief said, “This suit would not require a court to impose liability based on Defendants’ emissions of greenhouse gases or to dictate any regulation of pollution. Nor is the City attempting to ‘solve’ the problem of climate change.”

The oil companies argue that federal, not state, common law governs the claims, and that because the Clean Air Act gives the Environmental Protection Agency jurisdiction over carbon emissions, federal common law does not apply. That argument  relies on two previous climate change cases—AEP v. Connecticut and Native Village of Kivalina v. ExxonMobil et al.—in which courts ruled in favor of power plant and fossil fuel companies on that basis.

The companies also contend that the cases raised questions of international conduct and federal policies, none of which is not subject to state law. The companies even repeatedly claimed that this lawsuit “threatens to shut down” fossil fuel production and the industry itself.

Those arguments swayed Keenan, who ignored the liability question and said that it would be “illogical” for the “City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch.”  

The city argues the state law claims of nuisance and trespass are to “obtain compensation for costs of redressing the effects of global warming,” effects that the city said the industry has been aware of for decades. The city’s complaint centers on the companies’ knowledge that lawful use of their products would result in harm, not on the emissions themselves.

“As detailed in our brief, the district court should have considered our claims under established legal principles, including nuisance laws, that permit manufacturers to be held liable for selling products with the knowledge that they will cause environmental harm,” the NYC Law Department said in a statement on the city’s appeal of the case.

But defendants focus on the emissions in their brief, mostly ignoring the allegation that they knew about the harm their product would cause and engaged in public campaigns of misinformation on the science of climate change.

“Warned by their own scientists of the catastrophic weather events that would result from climate changes attributable to the production and use of fossil fuels, these companies protected their own vulnerable assets, while downplaying the seriousness of these threats to the public and the environment,” the city said.

Instead of defending against this allegation, the oil companies highlighted the global nature of global warming, writing: “Plaintiff seeks to hold Defendants liable under New York law for changes in the Earth’s climate allegedly resulting from Defendants’ worldwide extraction and production of fossil fuels and the emissions produced by billions of third parties who use those products all over the world.”

The United States government will file a friend-of-the-court brief supporting the oil companies in the coming weeks. New York City then has until March 25 to file a reply.