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.

By Karen Savage

New York City is suing five major oil companies, becoming the latest in a growing number of municipalities attempting to hold the industry accountable for damages caused by climate change.

New York Mayor Bill de Blasio will announce in a press conference Wednesday afternoon the suit against BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell, the five largest investor-owned fossil fuel companies as measured by their contributions to global warming. He will also announce that the city will divest its pension funds of $5 billion in fossil fuel investments.

“New York City is standing up for future generations by becoming the first major U.S. city to divest our pension funds from fossil fuels,” de Blasio said in a statement. “At the same time, we’re bringing the fight against climate change straight to the fossil fuel companies that knew about its effects and intentionally misled the public to protect their profits. As climate change continues to worsen, it’s up to the fossil fuel companies whose greed put us in this position to shoulder the cost of making New York safer and more resilient.”

The city will seek billions in damages to cover infrastructure improvements needed to protect New Yorkers from the increasing effects of climate change. The city has already begun implementing a $20 billion climate resiliency plan to protect city infrastructure from rising seas and extreme weather.

Now New York wants to shift the burden of protecting the city from climate change impacts back onto the companies it says have overwhelmingly caused the crisis.

When Superstorm Sandy hit New York City in 2012, it killed 43 people, caused $19 billion in damages and flooded nearly 90,000 buildings. Two million residents were left without power and 6,500 patients had to be evacuated from hospitals and nursing homes.  It drove home the city’s vulnerability to climate impacts and de Blasio made climate action a big part of his initial campaign for mayor in 2012.

“This is what climate leadership looks like,” Michael Brune, executive director of the Sierra Club, said in a statement after Wednesday’s announcement. “To confront the climate crisis, we must hold corporate polluters accountable in the streets, in the boardrooms, and in the courts.”

In the complaint, New York—which has a coastline longer than the coastlines of Boston, Los Angeles, Miami and San Francisco combined—says it now faces further threats to its property, infrastructure and to the health and safety of its residents.

The city is asking for $19 billion for projects already underway, as well as additional costs for unfunded projects and projects that would not be so urgently needed if not for climate change.

The complaint notes that the fossil fuel defendants have already been “taking climate change impacts into account when planning for and building their own operations and infrastructure,” but continue to “double down on the production of massive amounts of oil and natural gas, and encourage consumers to use unlimited amounts of fossil fuel products, despite having known for decades that this conduct was substantially certain to cause grave harm, including by putting coastal cities like New York City on the front lines of climate disaster.”

A recent study found that by 2030 New York’s 8.5 million people could experience Sandy-like flooding every five years and a report compiled in 2015 by the second New York City Panel on Climate Change (NPCC) found temperature, precipitation and sea level rise are increasing in the city.

Climate science has overwhelmingly linked rising sea levels, increased temperatures and increased precipitation events to global warming.

“The burning of fossil fuels is the single largest contributor to human-caused climate change,” said Dan Zarrilli, senior director of Climate Policy and Programs and chief resilience officer for the mayor’s office.

“This simple fact was denied and buried for decades by fossil fuel companies. Today, New York City is ending that decades old pattern of deception and denial by holding these fossil fuel companies to account for the damage they’ve caused.”

According to the NPCC, mean annual temperature increased 3.4 degrees Fahrenheit from 1900 to 2013 and mean annual precipitation increased by eight inches over the same period.

Sea levels in New York City rose 1.2 inches per decade since 1900, nearly twice the global rate. The trend is expected to continue and according to the NPCC report, “projections for sea level rise in New York City are 11 to 21 inches by the 2050s, 18 to 39 inches by the 2080s, and could reach as high as 6 feet by 2100.”

When announcing a new city mandate in September that existing buildings cut greenhouse gas emissions, Mayor de Blasio underscored the urgency of addressing climate change.

“It’s important that we feel that we are fighting this crisis like our lives depend on it, because in fact they do. It’s a life or death matter,” said de Blasio.

“The next storm is out there – it’s not a matter of if, but when.”

The initial reaction from industry backers was to criticize de Blasio’s “politicization” of climate change.

“Mayor de Blasio is just the latest mayor to lead his city into misguided litigation against America’s energy manufacturers,” Linda Kelly of the National Association of Manufacturers said in a statement. “The mayor’s decision to play politics with underfunded pension plans and sue U.S. energy manufacturers is the same divisive approach we’ve seen fail time and again. Similar to recent lawsuits in California, this headline-seeking stunt is an absurd attempt to politicize natural disasters, rather than a good-faith effort at securing meaningful change.”

Exxon and the American Petroleum Institute did not immediately respond to requests for comment.

“I think tobacco now is important—it did take a while, for sure, but there was tremendous material positive impact from those lawsuits, real damages paid and those were used to have a real positive impact on public health,” said de Blasio, who added that while the city’s litigation could take years, like tobacco litigation, it has the potential to bring about a shift in the public’s understanding of the risks of climate change.

De Blasio also said while the New York suit is a little different that those others might file, he encouraged other cities, both in the U.S. and elsewhere, to pursue legal action.

Climate advocates quickly cheered New York’s move.

“New York City’s impressive leadership makes me hopeful for the future, and the possibilities we have for addressing climate change from the city and state level,” Annie Leonard, executive director of Greenpeace USA, said in a statement. “New York City’s actions today should be a galvanizing moment for cities around the world, and others should follow suit with ambitious plans and lawsuits of their own.”

Activist and author Naomi Klein believes that is exactly what will happen, that other cities will be emboldened by New York’s move.

“Bullying isn’t going to work here the way it has in the past,” she said. “This lawsuit is coming from the largest city in the most powerful country on the planet, the city that also happens to be the financial capital of the world.”