Big Oil Fights NYC Challenge With Academic Gusto

MANHATTAN (CN) – As epic in scope as the global challenge it tackled, the first hearing Wednesday in New York City’s attempt to impute liability on oil companies for climate change featured a 90-minute salon on modern history.

New York City mayor Bill de Blasio speaks during his election night victory gathering, Tuesday, Nov. 7, 2017, in New York. (AP Photo/Julie Jacobson)

Touching upon topics as diverse as the Industrial Revolution, rising sea levels and Pope Francis, Gibson Dunn attorney Ted Boutrous argued that the case would hold his client Chevron “responsible for the way civilization and humankind has developed over the ages.”

“These cases don’t belong in court,” said Boutrous. “Global warming is a thorny issue. It’s an important issue.”

Rather than downplaying the threat of man-made climate change, Boutrous argued that the challenge belonged to a different branch of government.

“What you’re saying is that it’s for the legislature, not the judiciary?” asked U.S. Circuit Judge John Keenan.

“Exactly,” Boutrous replied.

Bringing the lawsuit down to a manageable scale, the city’s attorney Matthew Pawa described it as nothing more than a common public-nuisance case targeting companies that misled the public about the danger of their product.

“This is a case of absolutely first-rate importance to New York,” Pawa said, pointing out that it is a coastal city.

Announcing the lawsuit in January, New York City Mayor Bill de Blasio accused major oil companies of obfuscating about their knowledge of climate change since as early as the late 1970s.

“Until recently, the [American Petroleum Institute]’s website referred to climate change as ‘possible man-made warming’ and claimed that the human contribution is ‘uncertain,’” the 67-page complaint states, referring to the trade institute representing defendants BP, Chevron, ConocoPhillips, Exxon Mobil and Royal Dutch Shell.

Pulitzer Prize-winning articles by the Los Angeles Times and Inside Climate News exposed that Exxon Mobil’s internal research contradicted its public statements, sparking ongoing fraud investigations by state attorneys general in New York and Massachusetts.

New York City’s lawsuit asserts that deception ran industrywide, and Mayor de Blasio has been vocal about using the judiciary to push the country toward a new foreign policy direction.

“Let’s help bring the death knell to this industry that’s done so much harm,” de Blasio told Vermont Senator Bernie Sanders on his podcast.

The oil companies placed that quote prominently in its motion to dismiss, arguing that the city’s lawsuit was political.

This citation backfired before Judge Keenan, who found it irrelevant.

“For lawyers of your abilities to throw in something that’s not in the pleadings is a little insulting,” the judge scolded Boutrous.

Chevron’s attorney had a friendlier reception with his procedural arguments attacking jurisdiction and leaving climate change in the realm of international diplomacy and policymaking.

Boutrous noted that Pope Francis has been vocal on climate change, alluding to a personal plea the pontiff made urging oil executives from Exxon Mobil, BP, Royal Dutch Shell and other companies to convert to clean energy. Keenan raised another challenge for the city’s lawsuit that the oil companies did not mention: New York City uses the same fossil fuels causing what it claims to be a tort, raising an issue of what the judge called “unclean hands.”

“The police department has a lot of cars,” he noted. “The fire department has trucks. The sanitation department has trucks.”

“Aren’t the plaintiffs using the products that are the subject of the lawsuit?” Keenan asked.

“Yes, the city uses fossil fuels,” Pawa acknowledged, though he described that fact as irrelevant to a motion to dismiss.

“Does the city invest in some of these companies?” Keenan asked.

While Pawa claimed not to know the answer to that question, Mayor de Blasio announced a five-year plan for the city to divest from fossil fuel companies on the day the lawsuit was filed.

Judge Keenan ended the hearing without issuing a ruling.

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