California Attorney General Xavier Becerra filed in support of California climate suitsCalifornia's Xavier Becerra is one of three state attorneys general who wrote a brief to support the California climate suits against oil companies. Photo credit: Stephen Lam/Getty Images

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By Jennifer Dorroh

California Attorney General Xavier Becerra has jumped into the fight to hold oil companies accountable for climate change, although not with a state investigation as many climate activists had hoped. Instead, he’s supporting the lawsuits by two California cities against the oil industry in federal court.

Becerra filed an amicus brief last week supporting San Francisco and Oakland in their suit against a group of oil companies in U.S. District Court for the Northern District of California. It was also signed by Democratic attorneys general Gurbir Grewal of New Jersey and Robert Ferguson of Washington.

The friend-of-the-court brief counters a recent filing by 15 Republican state attorneys general urging the court to dismiss the cases. The Democratic AGs said that brief and the oil companies’ motion for dismissal, “tell a one-sided story of unbounded endorsement of extraction and consumption of fossil fuels by California and the federal government.”  

“Defendants do not, of course, point to any laws that explicitly authorize them to market fossil fuels while intentionally concealing their knowledge about the harms from those fuels, which is conduct the Plaintiffs complain of,” they said.

The briefs were filed ahead of a May 24 hearing on Exxon’s motion to dismiss. The Democratic attorneys general attempted to undercut the Republicans’ arguments for dismissing the federal case, while also making arguments that could be used to support a state nuisance suit if the case is eventually sent back to California state court.  Judge William Alsup has already ruled against sending the case back to state court, but the cities believe state law is more favorable to their claims and previous federal cases have set precedent in favor of the industry.

Alsup wrote in his decision to place them in federal court: “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.”

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.

“Judge Alsup took a very broad view of federal common law nuisance,” said Vermont School of law professor Pat Parenteau, who said he believes the Clean Air Act clearly displaces federal common law on the issue of liability for air pollutants, including greenhouse gases. “This judge is very intelligent and thinks very deeply, but I think he’s misreading the Supreme Court.”

The Republican brief also argued that the cities’ objections to fossil fuel use should be matters for public policy, not law. “The existence of state and federal laws promoting oil and gas extraction show that the public nuisance claims raise political questions,” their brief said.

This argument “ignores significant state and federal efforts to restrict [energy companies’] activity and promote alternatives to Defendants’ products,” the brief signed by Becerra said. The Democrats’ brief cites California’s Low Carbon Fuels Standard, along with state laws prohibiting new coastal oil and gas extraction leases and requiring that city planners attempt to shorten driving distances to help the state reduce its dependence on petroleum.

“The fact that a statute recognizes the legality of a certain occupation and makes provision for its regulation to avoid injuries does not justify or legalize such a business when it becomes a public nuisance,” the brief said.

The Republican attorneys general say the cities’ demand for oil companies to pay for sea walls and other abatement is 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,” they wrote in their brief.

“They were trying to argue that California is exporting its laws and interfering with interstate commerce,” Parenteau said. Automakers used this argument when California set its air quality standards higher than federal ones during the George W. Bush administration, he noted. “But this time, it isn’t a state adopting a regulation, it’s municipalities arguing in a suit that they can quantify and prove the damage. That has nothing to do with the commerce laws. You’re entitled to sue for harm.”