A friend-of-the-court brief supporting New York City’s liability lawsuit against major oil companies came last week from a source that once would have seemed unlikely: the Niskanen Center, a traditionally libertarian think tank.
The Center, based in Washington D.C., is led by Jerry Taylor, formerly a climate skeptic and a staff director at the American Legislative Exchange Council (ALEC). The Niskanen Center has long had a libertarian bent and is a staunch defender of property rights. But in the case of New York, which is trying to use state common law to hold five major companies accountable for climate change-related damages, the Center believes that law provides the best remedy for climate change-related damages because they harm both public and private property without the owner’s consent.
The brief was written by David Bookbinder, formerly chief climate counsel for the Sierra Club and the lead attorney in Massachusetts v. EPA, successfully arguing to the Supreme Court that the EPA is obligated to regulate carbon dioxide emissions as a pollutant. He has been Niskanen’s chief counsel since February 2017.
Earlier this year, the Niskanen Center became co-counsel in a climate liability suit filed by three Colorado communities against two fossil fuel companies, Exxon and Suncor.
Since then, the Center, and Niskanen in particular, has become a vocal force on issues in this new wave of litigation, now supporting the suit filed by the country’s biggest city against five major oil companies.
New York filed suit in federal court in January, asking for damages to cover infrastructure improvements needed to protect New Yorkers from the increasing effects of climate change. Three of the defendants—US-based Chevron, Exxon and ConocoPhillips—filed a motion to dismiss in February. Judge John Keenan will hear arguments on that motion on Wednesday in U.S. District Court for the Southern District of New York.
In their motion to dismiss, the oil giants maintain that the city’s claims aren’t covered by state common law because they involve greenhouse gas emissions, which are regulated by the federal government, not the states. That is the only way, the companies argue, to maintain uniform standards and avoid conflict and confusion between states.
The companies also argue that the city’s claims fail to meet federal common law guidelines because they are displaced by the Clean Air Act, which empowers the EPA to regulate air pollution.
Bookbinder contends that state common law does apply because “a plaintiff seeking damages against a fossil fuel producer does not upset or interfere with any federal interest in providing a ‘uniform’ system of regulating the emissions that come from burning these fuels.”
Bookbinder said although using federal common law for emissions complaints could result in inconsistent standards between states, applying the same law to the production of fossil fuels “will not—and cannot—present Defendants with similar matrices of potentially conflicting standards.”
Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University said the outcome of the motion—like the motion to dismiss in the Oakland and San Francisco suits —will hinge on whether the court accepts or rejects the argument that climate change nuisance claims necessarily implicate emissions—and not production and marketing.
“A cause of action for nuisance based on production and marketing is fairly well established under state common law. It would be a new creature under federal law,” said Burger, adding that in either instance it is a different thing altogether from a nuisance based on emissions.
“These filings make clear the broad support for the merits of NYC’s complaint and we look forward to presenting arguments to the judge on Wednesday,” said New York City spokesperson Seth Stein.
Exxon and ConocoPhillips did not respond to requests for comment.
“The U.S. Supreme Court and other courts around the country have repeatedly rejected essentially the same claims brought by the same group of plaintiffs’ attorneys,” said Sean Comey, Chevron’s senior advisor for corporate issues, litigation and financial communications. Comey added that public nuisance litigation is fundamentally ill-suited to address climate change. He said Congress has long encouraged the production of oil and gas to help achieve energy independence, national security, and robust economic growth, which means it cannot be a public nuisance.
Bookbinder said if fossil fuel companies are indeed vital to the economy, then bearing the cost of climate change is what an efficient market requires.
“Imposing damages liability on the Defendants simply requires them to pay for injuries caused by their products,” Bookbinder said.
“Otherwise, Defendants will continue to reap the benefits of producing fossil fuels, while requiring New York City and its taxpayers to subsidize the costs.”