On July 19, 2018, a U.S. District Judge threw out New York City’s lawsuit against five major energy companies alleging damages relating to climate change.
Judge John Keenan wrote in his opinion that, “Global warming and solutions thereto must be addressed by the two other branches of government,” not the judiciary, according to Bloomberg.
This major blow marks the third climate case to be thrown out—litigation in San Francisco and Oakland was dismissed by a federal judge last month on similar grounds.
Both of these cases were dismissed by U.S. District Court judges after the suits were ordered to be heard in federal court rather than state court, where they were initially filed.
Given these recent developments, it’s safe to say that the nationwide climate litigation campaign is not going exactly as planned. But while this isn’t the outcome activists are seeking, it’s possible that it’s still the outcome they expected.
Remember, the campaign itself can be traced back to a 2012 meeting among climate activists and lawyers in La Jolla, Calif., where a plan to stigmatize energy companies was devised.
During the meeting, participants discussed ways to replicate the broad-based litigation brought against tobacco companies in the 1990s and apply it to fossil fuel companies.
But during the meeting, Dan Yankelovich, co-founder of Public Agenda and expert in public opinion research, expressed reservations about depending on a legal strategy to change climate change policy:
“I am concerned about so much emphasis on legal strategies. The point of departure is a confused, conflicted, inattentive public. Are legal strategies the most effective strategies? I believe they are important after the public agrees how to feel about an issue. Then you can sew it up legally. Legal strategies themselves are a double-edged sword. The more adversarial the discourse, the more minds are going to be closed.”
The recent case dismissals call into question the future of the other pending lawsuits.
As Amy Harder of Axios recently pointed out, three additional pending lawsuits, filed in Washington State, Colorado and Rhode Island, have recently been punted from state to federal court—following the same track as the New York City and San Francisco and Oakland cases.
To the casual observer, the question of which court will hear which case may seem like an uninteresting procedural development.
But in reality, this move has wide-reaching implications for the broader legal campaign against the fossil fuel industry, as we are seeing today.
So why is the court venue important?
As a refresher, a mix of several cities, counties, and states—all but one of which are located on the coasts –are suing a variety of energy companies for damages related to climate change.
The issue with these lawsuits (other than the fact that their legal logic is dubious at best), is that the language incorporated in each complaint was crafted under the impression that these cases would be heard in state court.
The legal arguments included in these complaints are tailored according to local impacts and allege specific damages to the communities in question.
The strategy was to use the legal claim of “public nuisance” to get the targeted companies to pay up millions – if not billions –in damages that the plaintiffs claim will be inflicted upon residents if actions are not taken now to mitigate the effects of sea level rise and other impacts related to climate change.
While this argument is untested in state courts, there is a long-established precedence of ruling against these cases in federal court.
Similar arguments put forward by Matt Pawa—the plaintiffs’ lawyer representing many of the municipalities in the climate cases—were rejected by the U.S. Supreme Court in American Electric Power v. Connecticut in 2011.
The ruling essentially concluded that climate change is an issue of international concern and the regulation of greenhouse gas emissions – which contribute to climate change – should be left to Congress and the Executive Branch and not the courts.
Unsurprisingly, these rulings mirror statements that the California and New York judges made when dismissing the respective suits.
So, with that in mind, the plaintiffs’ attorneys effectively went forum-shopping in an attempt to secure a sympathetic judge and position themselves for the best chance of a big payout.
If the cases make the crossover to federal court, their fate is essentially sealed thanks to AEP v. Connecticut, among other prior decisions.
But, despite filing these cases in states known for aggressive climate action, like California and New York, no one is buying the local angle of these arguments.
When U.S. District Court Judge William Alsup dismissed the San Francisco and Oakland suit, the Clinton Administration-appointee saw through the legal maneuvering Pawa was attempting, and cited existing Supreme Court precedent to support his decision:
“Here, by contrast, defendants stand accused, not for their own emissions of greenhouse gases, but for their sale of fossil fuels to those who eventually burn the fuel. Is this distinction enough to avoid displacement under AEP and Kivalina? “The harm alleged by our plaintiffs remains a harm caused by fossil fuel emissions, not the mere extraction or even sale of fossil fuels. This order holds that, were this the only distinction, AEP and Kivalina would still apply. “If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori, they cannot be sued for someone else’s.” (emphasis added)
“Here, by contrast, defendants stand accused, not for their own emissions of greenhouse gases, but for their sale of fossil fuels to those who eventually burn the fuel. Is this distinction enough to avoid displacement under AEP and Kivalina?
“The harm alleged by our plaintiffs remains a harm caused by fossil fuel emissions, not the mere extraction or even sale of fossil fuels. This order holds that, were this the only distinction, AEP and Kivalina would still apply.
“If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori, they cannot be sued for someone else’s.” (emphasis added)
This first dismissal was a huge setback for the overall campaign and, as we see today, has ramifications for its future. Indeed, the majority of existing climate cases have been remanded to federal court.
If the outcome of the San Francisco, Oakland and now New York City cases is any indication, none have much of a chance of making it to trial, let alone achieving a successful outcome.
If the lawsuits were instead targeted at changing hearts and minds and getting public opinion on the side of the plaintiffs, it hasn’t been able to accomplish that either.
When hearing the cases in question, judges have called out the hypocritical nature of plaintiffs’ attorneys who have portrayed fossil fuel-use as an “evil.”
Judge Alsup pointed out the many enduring benefits of fossil fuels, saying, “If we didn’t have fossil fuels, we would have lost that war (World War II) and every other war.” He continued, “Planes wouldn’t fly. Trains wouldn’t run. And we’d be back in the Stone Age.”
He also noted the importance of considering these benefits when it comes to the strides we’ve made over the past 150-plus years.
“We needed oil and fossil fuels to get from 1859 to the present. Yes, that’s causing global warming. But against that negative, we need to weigh-in the larger benefits that have flowed from the use of fossil fuels,” he said.
Given the recent legal developments in the climate campaign, it’s clear that where these cases are being heard is just as important as the arguments being presented.
It is disingenuous for localities to sue companies for climate change when their own dependence on and use of fossil fuels is what leads to the emissions that cause climate change in the first place.
These are questions that are national and global in scope, not ones for judges to decide one-by-one on a hyper-local basis.
And so far, the judges seem to agree. So when it comes to venue shopping, plaintiffs may soon be asking for a refund.
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