Justice Department Asks Judge to Dismiss Climate Change Suits

SAN FRANCISCO (CN) – The Department of Justice on Thursday asked a federal judge to dismiss two lawsuits seeking to hold the world’s biggest oil companies liable for rising sea levels and climate change.

The twin lawsuits, filed by the cities of Oakland and San Francisco, accuse five oil giants of orchestrating a decades-long misinformation campaign about the science of climate change. The cities seek billions of dollars in damages to cover the cost of sea walls to combat rising sea levels.

The Justice Department says the executive and legislative branches are better suited than the courts to address the delicate issues of energy production, economic concerns and environmental harm.

“Balancing the nation’s energy needs and economic interests against the risks posed by climate change should be left to the political branches of the federal government in the first instance,” Acting Assistant Attorney General Jeffrey Wood wrote in the 30-page brief.

U.S. District Judge William Alsup had invited the Justice Department to weigh in on the issue ahead of a motion to dismiss hearing set for later this month.

The cities claim five oil giants schemed for decades to deceive the public about the connection between fossil fuels, warming temperatures and rising sea levels. Defendants include BP, Chevron, ConocoPhillips, Exxon Mobil and Royal Dutch Shell.

The Justice Department argues the cases should be dismissed because the cities’ public nuisance claims are preempted by the Clean Air Act, foreign affairs doctrine, and laws that regulate energy production on federal land. The department further claims that allowing the cases to proceed would violate the separation of powers principle in the U.S. Constitution.

“The cities ask the Court to create a federal common law claim that stretches across oceans to attach liability to conduct occurring entirely on foreign soil—all without any hint of the requisite express authorization from Congress,” the department states in its brief.

The cities are clinging to a novel legal theory: that the oil companies’ production of fossil fuels, rather than fuel emissions, is what led to warming temperatures and rising sea levels.

Despite that novel approach, the Justice Department says the cities are still relying on the same theory of liability that the Supreme Court rejected in a 2011 decision, American Electric Power Co. v. Connecticut. In that ruling, the court held that public nuisance claims arising from carbon emissions are preempted by the Clean Air Act.

The Justice Department further argues that assessing damages for any such claims would be impractical.  The court would need to track down what portion of the oil produced was used as combustible fuel, and what percentage of that fuel contributed to total greenhouse gas emissions across the globe.

Such relief could also clash with other nations’ laws and international agreements on climate change, the department argues.

“Foreign governments may have their own legal framework for addressing climate change or climate-related injuries and may have distinct views as to the appropriateness of international compensation for alleged climate injuries,” the brief states.

Additionally, the Justice Department says any claims arising from the extraction of oil and gas on federal lands or offshore would also be preempted by laws that authorize the U.S. Department of the Interior to regulate such activities.

The department further contends that advancing these lawsuits will open the floodgates for others to start seeking damages from corporations for any type of environmental harm that is already regulated by U.S. laws.

“Virtually every individual, organization, company, and government across the globe emits greenhouse gases. If these Cities may properly allege injuries from climate change, then so can every person on the planet,” the Justice Department argued in its brief.

In March, a Chevron attorney told Alsup the degree to which human activity contributes to climate change is still uncertain, despite an overwhelming scientific consensus that carbon emissions from fossil fuels are warming the planet.

The cities have argued in legal briefs that the Clean Air Act and other federal laws do not override their right to seek damages for public nuisance claims based on federal common law. The cities say no federal laws bar them from holding Big Oil liable for “deliberately false and misleading statements” about the science of climate change.

The litigation is playing out as the Trump administration moves forward with plans to pull the United States out of the landmark Paris Climate Accord, adopted in 2015, which aims to significantly reduce global carbon emissions for decades to come.

A hearing on the oil companies’ motions to dismiss the two lawsuits is scheduled for May 24 in San Francisco.



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