Cynthia Coffman, Republican attorney general of Colorado, with state Sen. Larry Crowder, opposes climate liability suitsColorado Attorney General Cynthia Coffman, right, is among the state AGs opposing climate liability suits. Photo credit: Colorado Senate GOP via Flickr

By Jennifer Dorroh

More than a dozen Republican state attorneys general filed a brief urging a federal court to dismiss two California cities’ climate change liability suits.

The officials filed a friend-of-the-court brief last week in support of dismissing San Francisco and Oakland’s case against five oil companies in U.S. District Court for the Northern District of California.

Among the attorneys general signing the brief was Cynthia Coffman of Colorado, where the nation’s first inland climate liability cases were filed last week in state court.

Coffman and the 14 other attorneys general are part of a group that has repeatedly sued the Environmental Protection Agency over enforcement and climate-related actions. That group included Oklahoma Attorney General Scott Pruitt until he became EPA chief last year. The other state AGs represent Indiana, Alabama, Arkansas, Georgia, Nebraska, Kansas, Oklahoma, Louisiana, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming.

“Plaintiffs’ objections to fossil fuel use are based in public policy, not law, and are thus not appropriate for judicial resolution,” the brief argues. Opponents of the suits believe that the cities are turning to the courts because they are unhappy with the Trump administration’s policy decisions.

The brief also argues that federal statutes have displaced the federal common law on which the San Francisco and Oakland cases base their liability claims.

Deciding the case in federal court, they wrote, “would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials. Federal courts should not use public nuisance theories to confound state and federal political branches’ legislative and administrative processes by establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-by-case basis under the aegis of federal common law.”

San Francisco and Oakland had originally filed the case in California court, but the oil companies successfully argued that it should be moved to federal court. U.S. District Judge Judge William Alsup denied the plaintiffs’ motion to remand the cases back to state court in March. “Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law,” Alsup wrote.

Another federal judge, however, ruled that another set of cases—filed by the counties of San Marin and San Mateo and the city of Imperial Beach—should be sent back to state court because the Clean Air Act voids federal common law on the issue. Yet in the San Francisco case, Alsup wrote, “Here, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.”

The AGs’ brief also asserts that the cities’ claims “jeopardize our national system of cooperative federalism.” This echoes Pruitt’s reasoning for re-evaluating the waiver that allows California to set emissions standards that are tighter than federal limits. “Cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country,” Pruitt said in a statement this month.

The brief also argues that cities are suing for “nothing more specific than promoting the use of fossil fuels. As utility owners, power plant operators, and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.”

The attorneys general frame the cities’ demand for oil companies to pay for sea walls and other abatement as an attempt to regulate out-of-state commerce through the courts. “Imposing such financial consequences on business activity contravenes Congress’s exclusive power to regulate interstate and foreign commerce,” the brief says.

The court has not yet accepted the brief. Alsup has accepted other amicus briefs in the case, but he rejected one submitted by the Heartland Institute, which organized a group of scientists to respond to Alsup’s climate tutorial questions. Alsup rejected the brief after the group disclosed it is funded primarily by the fossil fuel industry.

Ann Carlson, an environmental law professor at the UCLA School of Law, thinks it is possible Alsup will reject the brief from the attorneys general, whom she said are “trying to have it both ways.”

“On the one hand, they want the Clean Power Plan repealed, and they sued to have it overturned. Its entire basis is the Clean Air Act,” Carlson said. “And on the other hand, they want to say federal common law should be displaced because the Clean Air Act exists.”

The judge may also require more information before deciding, she said. “The fact that Judge Alsup has been scrutinizing other amici claims for consistency and credibility means it’s plausible he could have the attorneys general answer questions about what kind of regulations they do support or whether they believe climate change is happening,” she said.

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