Climate change-driven extreme weather has driven home the reason for New York City climate suitNew York City's climate suit aimed to hold fossil fuel companies accountable for climate damages as the city's costs grow because of global warming-driven extreme weather and sea level rise. Photo credit: Stephanie Keith/Getty Images

By Dana Drugmand

A federal judge ruled in favor of five major oil companies on Thursday, dismissing New York City’s climate liability lawsuit against them.

U.S. District Judge John Keenan’s ruling marks the second major victory for the fossil fuel companies fighting these climate suits in federal court. Late last month, Judge William Alsup dismissed the lawsuit brought by Oakland and San Francisco against the same five defendants in U.S. District Court in San Francisco.

New York City’s complaint, filed in January, included claims of public nuisance, private nuisance and trespass and sought monetary damages from BP, ConocoPhillips, Chevron, ExxonMobil and Royal Dutch Shell to help pay for the costs of protecting the city from climate impacts.

New York officials said they would appeal the ruling.

Like Alsup, Keenan found that the courts are not the proper forum to address harms resulting from climate change and greenhouse gas pollution, saying it’s an issue for the executive and legislative branches to tackle.

“There is a grave irony here. The fossil fuel company defendants claimed in court—and the judge apparently agreed—that it is entirely up to Congress and the President to address climate change. But these same defendants and their trade groups have fought successfully against even modest laws and regulations to cut the carbon pollution from burning fossil fuels that causes global warming,” Ken Kimmel, president of the Union of Concerned Scientists said in a statement. “My grandmother would have called this ‘chutzpah’ and lawyers call it ‘unclean hands,’ but no matter what you call it, the court should not have let these companies off the hook with this defense.”

The National Association of Manufacturers (NAM) welcomed the outcome. “From the moment this baseless lawsuit was filed, manufacturers have argued that the courtroom was not the proper venue to address this global challenge,” NAM president Jay Timmons said in a statement. “Judge Keenan made that clear in his decision today. Now that San Francisco, Oakland and New York City have had their cases dismissed, the other municipalities should withdraw their complaints to save taxpayer resources and focus on meaningful solutions.”

The other cases around the country, however, including one that will be announced on Friday by the city of Baltimore, are being filed in state court, so the reasoning of Alsup and Keenan will not necessarily apply.

Keenan said that federal common law governs the city’s claims, and therefore, the Clean Air Act displaces those claims. The Clean Air Act authorizes the Environmental Protection Agency to regulate greenhouse gas emissions, which is the reasoning behind the failure of previous federal cases, including AEP v. Connecticut (2011) and Native Village of Kivalina v. ExxonMobil (2012).

Keenan also said that because the city has benefitted from fossil fuels, a point emphasized by the oil companies in their hearing in front of Keenan, the city is culpable for climate change as well. “As an initial matter, it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades,” Keenan wrote.

Also like Alsup, Keenan avoided the issue of climate damages, which was the basis for New York’s complaint.

“It is also important to note that this suit was not focused on ‘solving’ global warming,” Kimmel said. “The suit sought to compensate New York City for the damages it has already suffered and will incur down the road. The climate threats facing New York City are overwhelming, and taxpayers are already paying to protect the city from future Sandy-scale damages.

Keenan dismissed the suit in its entirety with prejudice, meaning the city may not bring the same claim again.

New York officials, however, say they stand by the conviction that fossil fuel companies are liable for the harms their product has created.

“The Mayor believes big polluters must be held accountable for their contributions to climate change and the damage it will cause New York City. We intend to appeal this decision and to keep fighting for New Yorkers who will bear the brunt of climate change,” said Seth Stein, spokesman for the NYC Mayor’s Office.

San Francisco and Oakland have yet to announce if they will appeal Alsup’s decision.

Meanwhile, other climate liability lawsuits are pending in courts in California, King County, Wash., Colorado, and Rhode Island.

According to Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, the New York City decision does not determine the outcome of the other cases.

“It does show that Judge Alsup’s decision has resonated with at least one other judge, and I wouldn’t be surprised if other judges also find the reasoning persuasive,” he said. “But there is at least one other court that found the exact opposite, namely that state public nuisance claims are available.”

That would be Judge Vince Chhabria, who decided that state law should govern the claims brought by Marin and San Mateo counties and the city of Imperial Beach. The fossil fuel companies are appealing that decision.

The jurisdiction issue may be the key factor in determining the success of these suits.

“The cases that are either filed in federal court or—as with the San Francisco and Oakland cases—removed to federal court are decided under federal law,” said Ann Carlson, professor of environmental law and co-director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law. “Federal nuisance law is much less favorable for the cities and counties than state law is. The state courts are where we are likely to see interesting and perhaps surprising rulings.”

Keenan, however, rejected the possibility that the city could bring its claims under state common law. “Given the interstate nature of these claims, it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution,” he said in the ruling.

Keenan also followed Alsup’s lead in determining that holding foreign companies liable (as Shell and BP are headquartered outside the U.S.) and weighing liability for worldwide emissions would raise foreign policy implications. “To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government,” Keenan wrote. “Accordingly, the Court will exercise appropriate caution and decline to recognize such a cause of action.”

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