Judge Skeptical of Cities’ Climate Change Suits

SAN FRANCISCO (CN) – Mulling the fate of two lawsuits seeking to hold Big Oil liable for climate change, a federal judge said Thursday he cannot punish oil companies for producing planet-warming fossil fuels without also considering the benefits of oil and gas.

“We need to weigh in the large benefits that have flowed from the use of fossil fuels,” U.S. District Judge William Alsup said Thursday. “There have been huge benefits.”

Alsup made his remarks during a hearing on a motion to dismiss two lawsuits against the world’s five biggest oil companies: BP, Chevron, ConocoPhillips, Exxon Mobil and Royal Dutch Shell.

Oakland and San Francisco sued the oil giants last year, claiming their promotion of “phony” climate science and “ramped up” fossil fuel production has driven warming temperatures and rising sea levels, forcing both cities to spend billions of dollars on new sea walls to prevent coastal flooding.

Pelicans float on the water with an offshore oil platform in the background in the Santa Barbara Channel off the coast of Santa Barbara, Calif., May 13, 2010. Oil and gas companies drilling off the coast of Southern California violated state regulations nearly 400 times in the past three years, according to a report by an environmental group. (AP Photo/Mark J. Terrill, File)

Alsup told lawyers for both cities on Thursday that America “would have lost” World War II and other military conflicts without oil and gas to power planes and ships. He also asked how the cities can hold oil companies liable for conduct that was expressly endorsed by Congress and the president.

“Didn’t Congress tell the people in Texas and everywhere else, ‘Get out there and drill for oil,'” Alsup asked. “Every president I can remember says, ‘We’re going to achieve energy independence.'”

Representing the cities, attorney Steve Berman, of Hagens Berman Sobol Shapiro in Seattle, said Congress never directed the oil giants to “ramp up” fossil fuel production, despite knowing oil and gas emissions were harming the planet.

“Congress did not authorize them to lie about the science,” Berman said.

The oil companies say the lawsuit should be dismissed because only Congress and the Environmental Protection Agency can regulate fossil fuel emissions. They also argue that federal courts lack jurisdiction over oil and gas production overseas and that resolving climate change issues is a task best reserved for the political branches of government.

The Department of Justice has sided with the oil companies, arguing that a ruling in favor of the cities would “create a federal common law claim that stretches across oceans to attach liability to conduct occurring entirely on foreign soil.”

Meanwhile, the state of California supports the cities’ bid to make oil companies pay for sea walls, arguing Congress has never created a remedy for environmental harm caused by the production, sale and promotion of fossil fuels.

One of the oil companies’ main arguments is that federal public nuisance law has never been applied to global warming, and advancing these lawsuits would open the floodgates for other cities and counties to sue corporations for climate change, potentially leading to conflicting rulings by different federal judges.

Berman rejected that argument, pointing out that public nuisance law has been applied to polluters in the past and that the Supreme Court is well equipped to resolve conflicting rulings from lower courts.

“That’s the way our system works,” Berman said. “That’s why we have the Supreme Court.”

Another question Alsup asked is how the cities can seek damages for an injury that hasn’t yet occurred.

Sea levels are expected to rise up to 26 inches by 2050 and 66 inches by 2100, and 100-year flood events are expected to occur on annual basis by 2050, according to climate change research cited in San Francisco’s complaint.

“You’re asking for billions of dollars for something that hasn’t happened yet and may never happen to the extent you’re predicting it will happen,” Alsup said.

When asked to cite one cost the cities have already coughed up for climate change, Berman pointed to outside consultants hired to help the cities prepare for rising sea levels.

“That doesn’t add up to billions of dollars,” Alsup said. “When they have these weather models, they can’t even predict if it’s going to hit the east coast or west coast of Florida two days from now. Now we’re trying to predict sea rise 75 years from now. There’s no doubt there will be some sea rise, but is it going to be 75 or 25 years?”

Berman countered that those types of questions are premature at this stage of litigation.

“That’s what trial is for,” Berman said. “We allege we are being injured and will be injured.”

“That’s a fair point,” Alsup replied.

Alsup asked both sides to submit additional 10-page briefs on whether and how he should consider the benefits of oil and gas, in addition to the harms, in his analysis of whether oil companies acted “unreasonably” by promoting oil and gas production, despite knowing that fossil fuels were warming the planet.

The judge also said he would delay ruling on Royal Dutch Shell’s motion to dismiss based on Clean Air Act preemption, separation of powers and failure to state a claim until other jurisdictional issues are resolved.

Four oil companies – BP, Chevron, ConocoPhillips and Exxon Mobil – asked Alsup to dismiss the lawsuits for insufficient service of process or lack of personal jurisdiction. They claim their parent oil companies are separate from smaller subsidiaries doing business in California, and that the court therefore lacks jurisdiction over them.

Alsup authorized both sides to seek evidence on that question and said he will delay ruling on the more complex legal issues until the jurisdictional questions are settled. He predicted that discovery on the jurisdictional issue could take more than 60 days.

Since July 2017, at least ten cities and counties have filed public nuisance suits against oil companies alleging environmental harm caused by fossil fuels. Lawsuits were filed by the city of New York, the California city of Imperial Beach, San Mateo and Marin Counties in California, and three municipalities in Colorado.

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