Industry Wins In Three Climate Change Tort Suits, But Other Governmental Entities Continue Filing Suits

Author:Mr Kevin Holewinski and Daniella A. Einik
Profession:Jones Day

Two federal courts, one in California (involving two suits) and the other in New York, recently sided with energy industry defendants by agreeing with them that the climate change suits filed against them by governmental plaintiffs lacked merit and should be dismissed.

The suits in California were filed by the cities of Oakland and San Francisco against five of the top producers of fossil fuels worldwide, which had claimed that the defendants marketed and produced fossil fuels with knowledge that combustion of those fuels would and did create a public nuisance by causing various environmental impacts, including sea-level rise. In February 2018, the court denied the plaintiffs' motions to remand the cases back to state court. See " Federal Court in California Denies Remand of Climate Change Litigation." The defendants then moved to dismiss the cases for failure to state a claim. In The People of the State of California v. BP P.L.C. (N.D. Cal.), the court granted the motions to dismiss.

As a preliminary matter, the court noted that the dispute in these cases is not over the science of climate change. Based on presentations made by both sides during a science tutorial, all of the parties agree that fossil fuels have and will continue to lead to global warming and sea level rise that will impact Oakland and San Francisco. Instead, the court framed the issue as a "legal" one—namely whether these defendants should be held responsible and pay for the anticipated harm.

The court explained the public nuisance standard under federal common law but noted that it need not go through the steps to analyze the claims because there was a more direct resolution to the matter, holding that the claims were foreclosed because they interfere with the separation of powers and involve foreign policy. In these cases, plaintiffs seek to impose liability on the defendants for the production and sale of fossil fuels globally. According to the court, these types of issues are best left to the executive or legislative branches. Nuisance suits trying to address worldwide conduct are not likely to solve the problem and may in fact interfere with foreign policy discussions and solutions. Ultimately, the court concluded that the problem requires a broader solution than an order by a district court judge or jury verdict on a public nuisance claim.

Less than a month later, the court in New York dismissed New York City's suit that sought to hold industry accountable for...

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