A key hearing in the California climate cases by San Francisco and Oakland to be heard in U.S. District Court in San FranciscoU.S. District Court in San Francisco will hold a critical hearing in the San Francisco and Oakland climate liability cases on Thursday. Photo credit: Ken Lund via Flickr

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By Amy Westervelt

The hearing set for Thursday before U.S. District Court Judge William Alsup on a motion to dismiss two climate liability lawsuits may mark a turning point in the suits brought by the cities of San Francisco and Oakland against the country’s five largest fossil fuel producers—BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell. If the cases go forward, they will be the first of their kind to survive such a motion.

Alsup has several alternatives. He could dismiss the cases, sending them into a complicated appeal route, either to the Ninth Circuit Court of Appeals or finding a path back to state court. He could order they proceed to trial, which would be a landmark step for climate liability lawsuits. Or Alsup could allow San Francisco and Oakland to amend their complaints to keep the cases alive.

He has previously suggested the cities amend their complaints to bring them under federal common nuisance law. In a hearing in March, he also suggested plaintiffs update aspects of the complaint that pointed to conspiracy amongst the oil giants. The cities responded by submitting amended complaints in April.

Alsup decided in March to keep in the cases in federal court, but gave the cities direction on how they might succeed, despite previous federal cases that failed because courts ruled the Clean Air Act displaced nuisance claims. “Plaintiffs do not bring claims against emitters, but rather bring claims against defendants for having put fossil fuels into the flow of international commerce,” he wrote. “Importantly, unlike AEP and Kivalina, which sought only to reach domestic conduct, plaintiffs’ claims here attack behavior worldwide. . . . 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.”

Alsup could allow the cities to amend their complaint again. “He could say this doesn’t quite cut it, but I’ll give you one more shot, and you could amend to plead X,” said Sharon Eubanks, the former Department of Justice lawyer who led the government’s RICO cases against Big Tobacco in 2000 and now handles civil litigation for Bordas & Bordas in West Virginia.

Alsup will review the new complaints in Thursday’s hearing, along with hearing arguments on the oil companies’ motion to dismiss, before issuing his ruling.

If Alsup dismisses the case entirely, the cities could appeal, but it might take a while. Ann Carlson, a professor of environmental law at the UCLA School of Law, where she also serves as faculty co-director of the Emmett Center on Climate Change and the Environment,

said that the case could then hinge on what happens to another set of climate liability lawsuits currently remanded to California court. As Alsup was ruling San Francisco and Oakland’s cases would stay in federal court, U.S. District Court Judge Vince Chhabria sent the cases filed by Marin and San Mateo counties and the city of Imperial Beach back to state court.

That decision was appealed by the oil companies as they seek to have the case moved to federal court, and awaits hearings in the Ninth Circuit. “If the Ninth Circuit holds that the cases should be remanded to state court, then the plaintiffs in the SF/Oakland cases presumably can refile in state court,” Carlson said.

On Wednesday, the Ninth Circuit denied the plaintiffs’ request for an extraordinary interlocutory appeal, but a separate appeal remains pending.

Many, including Carlson, believe the cases would be more successful in a California court,  where they wouldn’t have to worry about the Clean Air Act pre-empting nuisance claims. That’s the roadblock that stopped previous federal cases Kivalina v. ExxonMobil and Connecticut v. AEP. The state law claims are, most agree, much stronger than the federal law claims.

In all of these cases, there’s also always ultimately the option of appealing to the Ninth Circuit. “We’re likely to see that happen,” Carlson said.

The fate of San Francisco and Oakland’s complaints may have an impact on the suit New York City has filed in federal court, but most of the other climate liability lawsuits are being pursued in state courts, including three more in California, one in King County, Wash., and a batch in Colorado. “I don’t think a ruling dismissing the cases in federal court has much effect on other nuisance suits currently pending in state court,” Carlson said.

The more dramatic path would come if Alsup rules in favor of the cities.

“Then the case would move through discovery and more motions would be filed through that process, including another motion for summary judgment; that’s just typical,” Eubanks said.

Alsup has been anything but predictable in these cases so far—from keeping them in his court to ordering a science tutorial to suggesting a way for the plaintiffs to amend their complaints—so it’s still anyone’s guess what will happen on Thursday. Alsup said of the case in response to a request for an interview, “The outcomes of it are endless.”