Marin County, Calif., is among the communities who successfully argued to keep its climate suit in state court.Marin County, Calif., is among the communities who successfully argued to keep its climate suit in state court. Photo credit: Justin Sullivan/Getty Images

By Dana Drugmand

A federal judge sent a set of California climate liability lawsuits back to state court on Friday. The decision, by U.S. District Judge Vince Chhabria, conflicts with Judge William Alsup’s order in late February denying remand for similar lawsuits brought by Oakland and San Francisco.

The counties of Marin and San Mateo and the city of Imperial Beach filed suit in July against 37 fossil fuel companies for their role in contributing to sea level rise that is damaging those communities. San Francisco and Oakland followed in September with their own lawsuits against five large oil companies. Defendants moved to shift both sets of cases to federal court, a strategic move based on the failures of previous climate lawsuits brought under federal common law. Plaintiffs then moved to remand back to California state court, with two separate hearings held in February.

Chhabria had expressed skepticism towards the fossil fuel industry arguments in his hearing of the San Mateo, San Marin and Imperial Beach cases, then rejected their positions in this ruling.

Unlike Alsup, Chhabria disagreed with the defendants’ chief argument that federal common law should apply in these cases. The two judges differed in their comparisons of the current California lawsuits to that of Native Village of Kivalina v. ExxonMobil et al. Judge Alsup determined that Kivalina sought damages from domestic emitters, while the California plaintiffs “bring claims against defendants for having put fossil fuels into the flow of international commerce.”

But Chhabria reasoned that the California cases are not distinct from Kivalina.

“Like the localities in the current cases, the Kivalina plaintiffs sought damages resulting from rising sea levels and land erosion,” he wrote in his order. “Not coincidentally, there is significant overlap between the defendants in Kivalina and the defendants in the current cases.” Because the Kivalina decision held that the Clean Air Act displaces the federal common law nuisance claim, Chhabria said, federal common law cannot govern the current nuisance claims.

“Kivalina stands for the proposition that federal common law is not just displaced when it comes to claims against domestic sources of emissions but also when it comes to claims against energy producers’ contributions to global warming and rising sea levels…Simply put, these cases should not have been removed to federal court on the basis of federal common law that no longer exists,” Chhabria wrote.

He also determined that state courts are capable of deciding ordinary preemption questions, and that complete preemption does not apply here.

“It may even be that these local actions are federally preempted,” Chhabria wrote. “But to justify removal from state court to federal court, a defendant must be able to show that the case being removed fits within one of a small handful of small boxes. Because these lawsuits do not fit within any of those boxes, they were properly filed in state court and improperly removed to federal court.”

Chhabria issued a 42-day stay on the remand order in order to consider defendants’ rights to appeal, but did call their right to appeal based on a narrow claim related to federal officer jurisdiction “dubious.”

“While we expect these big fossil fuel corporations and their lawyers to keep trying to delay and distract from the merits of our case, we look forward to moving to trial so our communities can pursue the accountability and justice they are due,” San Mateo County and Marin County officials said in a joint statement following the ruling.

Chhabria will also decide whether to remand similar lawsuits filed by Santa Cruz County and the cities of Santa Cruz and Richmond. A remand hearing for those cases is scheduled for March 29.