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The prospects for a possible climate lawsuit currently under consideration in Boulder, Colo. could change following a pair of California municipalities lost their bid to keep the climate lawsuits they filed against oil and gas companies in state court after a judge ruled the litigation must remain in federal court.
The U.S. District Court for the Northern District of California’s Judge William Alsup denied Oakland and San Francisco’s motions last week that sought to return their climate cases to state court. The cities have sued BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell, alleging flood damages as a result of what they claim are the effects of climate change such as sea-level rise and the need for mitigation, including sea walls.
The judge cited the plaintiffs’ claims “depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available,” Alsup wrote.
“Federal jurisdiction is therefore proper,” he ruled.
Alsup said the issues raised by Oakland and San Francisco, such as flooding along the state’s coast, were “quintessentially” a matter for federal oversight.
Given “that other issues implicated by plaintiffs’ claims also demonstrate the proprietary of federal common law jurisdiction,” Alsup wrote, the “plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.”
But Alsup also issued an invitation to counsel to address “the subject of global warming and climate change” on March 21 that calls for opposing counsel, or experts called by each side, to offer a “tutorial” on climate change.
“The first part will trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historical cooling and warming, smog, ozone, nuclear winter, volcanoes, and global warming. Each side will have sixty minutes,” Alsup wrote.
“A horizontal timeline of major advances (and setbacks) would be welcomed,” Alsup continued. “The second part will set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding. Each side will again have another sixty minutes.”
In addition to Oakland and San Francisco, several other California municipalities and counties have sued oil and gas producers in recent months, along with New York City, which followed suit in January.
As Western Wire first reported, the City of Boulder is currently considering what “potential costs and risk” may be involved should they elect to follow in California and New York City’s footsteps and launch their own climate lawsuit. Boulder City Attorney Tom Carr and City Manager, Jane Brautigam, presented the city council with an agenda item in January exploring the reasoning behind potential litigation.
“The purpose of this council agenda item is to seek council direction regarding the city’s potential participation in a lawsuit against large fossil fuel producers and/or large greenhouse gas emitters to compensate local governments for their climate mitigation and resilience expenses and damages caused by a changing climate,” they wrote. “The lawsuit would be filed by a group of Colorado local governments, potentially including Boulder County.”
Damages from the September 2013 flood and wildfires, here taking the place of coastal flooding, have been offered as evidence arguing for a Boulder-led lawsuit.
“The purpose of the litigation would be to seek to recover the additional costs that the city has incurred and will incur because of human-caused climate change,” Carr and Brautigam wrote.
A City of Boulder spokesman, Ben Irwin, told Western Wire by phone that the city would not have any comment on prospective climate litigation until a decision and announcement has been made public.
Reactions to Alsup’s decision have been mixed. Co-Executive Director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law, Cara Horowitz, told E&E News that, “[the decision] tells them they can’t pursue the claims they were trying to pursue under state law — but that those same claims may be open to them under federal law.”
The National Association of Manufacturers, however, characterized the decision as a “setback” for the municipalities.
“This decision from the Northern District of California is a significant setback for these politically-motivated and legally questionable lawsuits and should be a signal to the plaintiffs’ bar that this approach is a legal dead end,” wrote NAM’s Manufacturers’ Accountability Project Executive Director Lindsey de la Torre. “Precedent shows that similar cases heard in federal court have been unsuccessful for plaintiffs looking to pin the global challenge of climate change on manufacturers. Plaintiff attorney Matt Pawa, who masterminded the lawsuit in San Francisco, has tried several such cases himself and has been ultimately turned away each time.”
Pawa represented plaintiffs in two failed cases at the federal level.
Though the federal cases, like those of plaintiffs’ attorneys such as Pawa, have not fared well, Alsup further justified the retention of federal jurisdiction.
“[T]he scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable,” Alsup wrote.
Whether or not the suits brought by San Mateo and Marin counties and the city of Imperial Beach will remain at the state or federal level is still undecided.
San Francisco City Attorney’s Office spokesman John Cote said the city had not decided whether to appeal Alsup’s ruling.
“It’s clear that Judge Alsup issued a thoughtful ruling that sets out a clear path for us to proceed with our case in federal court,” Cote wrote. “No matter what courthouse we’re in, we will continue to defend San Francisco residents from fossil-fuel companies that are trying to shirk their responsibility and stick taxpayers with the bill.”
