By Karen Savage
The Trump administration has filed an amicus brief on behalf of five oil giants, arguing that lawsuits by the cities of Oakland and San Francisco attempting to hold the companies accountable for the impacts of climate change violate the constitutional principle of separation of powers.
In the brief, the Department of Justice said the cities’ claims are preempted by the Clean Air Act, which regulates air pollution and emissions. The department contends the issues should be addressed by federal regulators, not the courts. The brief was filed ahead of a May 24 hearing in U.S. District Court on the oil companies’ motion to dismiss the case.
“Rather than impose a liability scheme for the cost of adaptation, Congress has given the Executive Branch authority to regulate the underlying emissions within the confines of the Clean Air act, thereby speaking directly to the effects of climate change like sea level rise,” wrote acting Assistant Attorney General Jeffrey Wood.
Oakland and San Francisco say the carbon emissions created by the defendants—BP, Chevron, ConocoPhillips, Exxon and Shell—have contributed to climate change, which is causing seas to rise.
In the suits, which were filed separately in the U.S. District Court for the Northern District of California last September, Oakland and San Francisco hope to force the companies to fund a sea level rise abatement program that will be used to build sea walls and other structures to protect low-lying public and private property from what reports indicate could be “catastrophic” damage by 2100. A recent study concluded that a combination of sea level rise and subsidence could put up to 166 square miles of the Bay Area underwater by 2100, an area that includes half of the runways at San Francisco International Airport.
An attempt by the cities to move the suits to state court was thwarted when U.S. District Judge William Alsup decided in February that the proceedings should remain in federal court, ruling that federal common law applies in the case.
In its filing, the Justice Department contends that because the Department of the Interior regulates fossil fuel production, a court ruling would “effectively second guess Congress’ decision to authorize production on these lands”.
“Balancing the nation’s energy needs and economic interests against the risks posed by climate change should be left to the political branches of the federal government in the first instance,” wrote Wood in the brief.
The DOJ also maintains that although some of the emissions come from overseas production, Congress has the power to regulate commerce and efforts by the cities to hold the oil companies accountable “would function as a sweeping, retroactive tax on Defendants’ overseas operations” and could result in double taxation on the oil companies.
Not everyone is buying the government’s arguments.
“There is something hypocritical about the Department of Justice arguing that federal common law is displaced because the U.S. is regulating greenhouse gases under the Clean Air Act and because it is engaged in international processes at the same time: The federal government has withdrawn the Clean Power Plan, is about to withdraw auto emissions standards and has announced that it will withdraw from the Paris Agreement,” said Ann Carlson co-director of the UCLA School of Law’s Emmett Institute on Climate Change and the Environment.
John Coté, communications director for the San Francisco city attorney’s office, said he’s not surprised that Donald Trump’s Justice Department is cozying up to Big Oil, but said this is a legal matter, not a political one.
“Here’s the bottom line: these fossil fuel companies knew for decades that their products were causing global warming and they worked tirelessly to mislead the public about it,” said Coté.
“Now that they’ve been caught, they’re trying to stick cities like San Francisco with the bill. No thanks. These companies knew what they were doing and hid it from the public. It’s time for them to pay their fair share.”