By Dana Drugmand
Oil companies, already busy fending off lawsuits from several California communities, have filed opposition to a similar suit from New York City.
Chevron, ConocoPhillips and ExxonMobil filed a memorandum of law last week, arguing to dismiss New York’s climate liability lawsuit. Their long list of reasons includes the city’s dependence on and use of fossil fuels, a lack of standing by the city to sue and the now-familiar Big Oil argument that because the Clean Air Act governs climate pollution, courts should not intervene.
New York, which sued the five biggest oil companies in January, promptly responded with an opposition to the motion. It rejects all of the oil companies’ arguments, explicitly noting that the Clean Air Act does not regulate fossil fuel production and sale, and therefore is not viable grounds for dismissal.
“The case should not be dismissed because it is well-grounded in the law of public nuisance and trespass and is not preempted by federal law,” said a New York City Law Department spokesman. “The defendants’ products inevitably contribute to climate change when used exactly as intended and they understood decades ago that this process would cause grave harm to coastal cities like New York.”
A hearing on the defendants’ motion to dismiss is scheduled for June 13 in the U.S. District Court for the Southern District of New York.
Unlike the California communities, New York filed the case in federal court despite arguing that the case should be decided based on New York State law. Because none of the defendants are incorporated in New York, federal court was the only option because a statute gives federal courts jurisdiction when none of the defendants reside in the same state as the plaintiff. (In the case of California, Chevron is an in-state company.)
The oil companies emphasized in their arguments that because carbon emissions are global and people all over the world burn fossil fuels to release the emissions, it is implausible to hold five companies liable for “actions of literally billions of intervening third parties.”
The defendants also said that reducing emissions involves complex policy choices and judicial intervention would threaten the separation of powers.
“These claims cannot be adjudicated without deciding whether the benefits of using fossil fuels are outweighed by the costs,” the defendants wrote, noting that “similar lawsuits targeting this same issue were dismissed.”
Those earlier lawsuits are key to oil companies’ primary argument. Both the Supreme Court, which ruled in AEP v. Connecticut in 2011 and the Ninth Circuit Court of Appeals (Kivalina v. ExxonMobil in 2012) dismissed global warming nuisance claims under federal common law because the Environmental Protection Agency has the authority under the Clean Air Act to regulate greenhouse gas emissions. Although New York brought its claims under state common law, it filed the case in federal court and the defendants argue that federal common law must apply.
The oil companies also insist that the city’s claims extend beyond the acceptable boundary of New York nuisance and trespass law. They argue that the city cannot demonstrate how the oil companies caused the harms cited, and that it shoulders significant blame. “Plaintiff has for decades authorized the activities it now claims created the nuisance, encouraged its residents to use fossil fuels, and reaped economic benefits from this reliance, including as an investor in fossil fuel companies,” the defendants wrote.
New York countered each of these arguments, explaining that the City’s claims are viable under New York law, are not precluded by federal doctrines or statutes, and can be decided by a court. It also said that the previous federal cases cited by the oil companies left open the possibility to bring claims under state common law. “AEP and Kivalina undercut defendants’ argument because both cases preserved state common law claims that the plaintiffs in those cases had pled in the alternative,” the city officials wrote.
The case is being heard by U.S. District Judge John Keenan, who has held the seat since he was appointed by President Ronald Reagan in 1983.