Rising sea levels threaten San Francisco Bay

By Amy Westervelt

The four oil companies that did not speak at a U.S. District Court judge’s climate tutorial two weeks ago filed the responses the judge had ordered during that hearing. All four filed similar statements this week, all reflecting a general acceptance of the climate change assessments by the Intergovernmental Panel on Climate Change.

The tutorial had been ordered by U.S. District Court Judge William Alsup to educate him as he considers the climate liability cases filed against the five major oil companies by the cities of Oakland and San Francisco. Four companies remained silent that day: Shell, ConocoPhillips, BP and ExxonMobil. Only Chevron attorney Ted Boutrous spoke and Alsup told the other attorneys, “You can’t get away with sitting there in silence and then saying later, ‘Oh, he [Boutrous] doesn’t speak for us.’”

The four oil companies said in their responses that because they had already moved to have the case dismissed, that justified their lack of participation in the tutorial. Shell also referenced its separate motion to dismiss on the basis that it is a foreign company. But the companies’ responses also called Boutrous’ reliance on IPCC reports  “an appropriate source of information for the Court to consider to further its understanding of the timeline and science surrounding climate change.”

Exxon, having lost its suit challenging the fraud probes by the attorneys general of Massachusetts and New York, filed a slightly different response than the others, affirming some but not all of Boutrous’ presentation. In its statements for the court, Exxon placed the responsibility for inaction on carbon emissions at the feet of the government, not the fossil fuel industry.

While Exxon called the IPCC reports a useful scientific reference, the company said it doesn’t agree with every IPCC statement, and that the science is not relevant to the company’s motion to dismiss. That motion argues that federal law preempts the state law the plaintiffs originally cited in the lawsuit, and that previous climate change tort cases, such as Kivalina v. ExxonMobil, ruled that federal common law cannot be used to regulate greenhouse gas emissions.  

Meanwhile, the case’s plaintiffs have filed an amended complaint, taking a cue from Alsup’s jurisdictional ruling that kept the cases in federal court instead of California court, where they had been originally filed. They added federal common law claims, as well as additional information on climate impacts, what defendants knew about the causes and consequences of climate change (and when). They included information from scientist Richard Heede’s Carbon Majors report, which pinpointed the major sources of anthropogenic CO2 and methane emissions since the 1850s, indicating how much of the CO2 and methane in the atmosphere is attributable to each company.

“Defendants are collectively responsible, through their production, marketing, and sale of fossil fuels, for over 11 percent of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution,” the new complaint reads.

Because four of the companies based their motions to dismiss on lack of jurisdiction (only Chevron has an active refinery in California), the plaintiffs added additional detail linking the defendants’ emissions to global sea level rise as well as the rising of San Francisco Bay.

Alsup has also ordered the defendants to respond to four additional questions regarding their motions to dismiss. He also scheduled a hearing on those motions for May 24.