Two California climate cases, by San Francisco and Oakland, remain alive in federal court.

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By Amy Westervelt

The next step in San Francisco and Oakland’s climate liability suits against the country’s top five oil producers will get decided in nine weeks by U.S. District Court Judge William Alsup, who said after a hearing on Thursday that he would allow 63 days of discovery in order to rule on the issue of jurisdiction.

That was one of the two motions to dismiss the case made by the oil giants, BP, Chevron, ConocoPhilips, Exxon, and Shell. Alsup’s ruling means the cities can request both documents and depositions in the next nine weeks. The judge declined to rule on the second motion to dismiss, on the basis of displacement—whether the Clean Air Act makes the claims in this case moot—until the jurisdictional issue has been addressed.

The cities filed their suits last year, seeking to hold the oil companies responsible for global warming-driven sea level rise, which is causing billions of dollars of current and future impacts. They were originally filed in state court, but Alsup has kept them in federal court, and so far has avoided falling back on previous court rulings that have squelched federal climate cases.

Shell attempted to argue that because it is a foreign company with no general manager in California, it should be removed from the cities’ complaints for lack of personal jurisdiction, but Alsup was not convinced. “According to you, but I can’t just take your statement as fact, would these guys [plaintiffs] find that to be true if they looked at your files?” he said.

Shell’s attorneys argued that there was no need for Alsup to provide a discovery period to explore the jurisdiction issue, but Alsup said, “I don’t need to, or I can’t? Because I think I can grant them discovery.”

Alsup made similar statements to the other oil companies, and then quipped to Exxon’s attorney Jaren Janghorbani: “You were smart, you didn’t submit a declaration so we can’t open you up to discovery.”

Exxon was the only company that did not submit an official declaration on its jurisdiction, although Janghorbani did argue during the hearing, “You can sue us in Texas and New Jersey, but not in California.”

ConocoPhillips attorney Traci Renfroe took it a step further. In response to a question from Alsup about where ConocoPhillips could be sued, he said, “Nowhere.”

“The assertion that a company can do business everywhere and be sued nowhere is not right,” countered Ben Krass of Hagens Berman, one of the plaintiffs’ attorneys.

Alsup did also begin to address the thornier issue of displacement and what the cities are calling “plus factors:” the oil companies’ history of funding faulty science, conducting a public campaign to spread uncertainty about climate science and falsely advertising its products. 

The arguments in that part of the case revolve around whether a federal court can, or should, tackle a nuisance case such as this one. “Basically the bone of contention between the parties is: Are we creating some sort of new federal law, which a federal judge should be hesitant to do, according to the defendants?” said Steve Berman, one of the plaintiffs’ attorneys. “We say we’re not. We’re just applying the decades-old concept of nuisance to a new problem, and courts have evolved with technological changes to address new problems all the time.”

Berman said the second big issue is whether this should be a federal policy matter and not one tackled by the courts. “The city says no, Congress has not acted to preempt or shove aside any common law attempts to address harm from global warming and therefore, we’re properly in court,” Berman said.

Alsup asked each side to submit a 10-page brief that addresses holding oil companies accountable without the need to, as he put it, “lose the benefit of fossil fuels.” In other words, the companies can continue to operate while also being asked to pay for the damages their products have inflicted. Those briefs are due back to the court next week.

“I’m going to postpone rulings until we get this right,” Alsup said. “I’ve done all the damage to your case that I can do today.”