As the Ninth Circuit prepares to rule on two cases involving local governments suing oil companies over climate change, legal reform groups are concerned that an onslaught of similar litigation in California could ensue if the appeals court allows the cases to go forward.
The appellate judges, Sandra S. Ikuta, Morgan Christen, and Kenneth Kiyul Lee, heard oral arguments on Feb. 5 in Pasadena.
The panel heard arguments in separate climate change suits, filed in state courts by San Mateo, Marin and Santa Cruz counties and the cities of Richmond, Santa Cruz and Imperial Beach, against Chevron and several other oil companies. After U.S. District Judge Vince Chhabria of San Francisco denied moving the cases to federal court, the oil companies appealed.
Boutrous
In a second hearing before the Ninth Circuit, attorneys for the cities of Oakland and San Francisco asked the judges to reinstate their case against BP and other producers, alleging the defendants’ oil exploration violated public nuisance laws by causing environmental and infrastructure damage. The cases were originally filed in state court but got moved to federal court, where they were dismissed by U.S. District Judge William Alsup of San Francisco in 2018.
Oil companies are vigorously defending the litigation.
“The courtroom is not the proper venue to address this global policy issue,” Kyla Christoffersen Powell, President and CEO of the Civil Justice Association of California (CJAC), said in an email response to the Northern California Record. “Climate change is an issue for our state’s policymakers, who have been recognized for enacting policies that hold California to the most stringent standards for environmental responsibility and industrial safety in the nation.”
Back in state court, the plaintiffs may get more favorable rulings, Julie Griffiths, regional director of Citizens Against Lawsuit Abuse (CALA) told the Record.
“The state courts here are far more likely to accept cases, whereas many other courts would shoot it down,” Griffiths said.
Similar litigation has taken place in state courts across the country in recent years. King County in Washington, the state of Rhode Island, and New York City have pending cases.
On March 9, the City of Honolulu filed suit in state court against eight oil companies, including Aloha Petroleum, BP, Chevron, Shell and ExxonMobil, alleging they contributed to a rise in sea levels that is costing the city $19 billion.
At last month’s Ninth Circuit proceedings, defense attorney Theodore Boutrous, of Gibson Dunn & Crutcher LLP, argued that federal law should apply because the companies’ work occurred in many U.S. states and dealt with fossil fuel emissions that date back decades.
Additionally, he said, the companies’ exploration work on federal lands that resulted in payments to the U.S. government would mean federal court is the proper jurisdiction.
Victor Sher, of Sher Edling LLP, an attorney for the plaintiffs, stated the companies had acted in their own interests to deceive the public about the realities of climate change.
The judges do not have a set deadline by which to issue their ruling, but it’s expected to be handed down by the end of the year.
If the municipalities prevail, Griffiths of CALA said, “I think you’ll see the court smothered with these kind of things.”
In a Ninth Circuit decision issued in Oregon last year, the court dismissed a lawsuit brought by 21 young people who claimed they had been harmed by climate change caused by fossil fuel emissions.