New York City will appeal its climate case to the Second Circuit Court of AppealsNew York City will appeal its climate liability suit to the Second Circuit Court of Appeals. Photo credit: Spencer Platt/Getty Images

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By Dana Drugmand

When two federal judges dismissed climate liability lawsuits by San Francisco, Oakland and New York City, it wasn’t the end of the road for those suits or others of their kind. But it did highlight the importance to the cities of having these kinds of cases tried in state court.

All three cities plan to appeal, sending their cases into federal appeals courts. The other cases filed around the country were filed in state courts and are in pitched battles to stay out of the federal court system, which is exactly where the fossil fuel industry wants them.

Removal to federal court is considered standard procedure if requested by a defendant, according to the Federal Rules of Civil Procedure. In these cases, that means the communities filing the suits are starting out having to argue what is perhaps the most important point in their cases, that they should be governed by state law.

The federal courts offer an easier path to dismissal, as evidenced already by both Judge John Keenan in the case of New York City, and Judge William Alsup in tossing out San Francisco’s and Oakland’s complaints. They both ruled that the courts are not the proper branch of government to be dealing with climate change, punting the issue to the legislative and executive branches. The judges said that because the Clean Air Act gives the Environmental Protection Agency the task of regulating air pollution, that law preempts any attempts to hold polluters accountable in federal courts.

That ruling isn’t new legal thinking—previous cases have set that precedent for federal law—but what hasn’t been resolved is whether state law can be used to hold companies liable.

“To me the fundamental jurisdictional question to be resolved is the preemption question,” said Patrick Parenteau, environmental and climate law professor at Vermont Law School. “That is, whether the [federal] Clean Air Act preempts a state common law nuisance remedy for climate change— that’s the question.”

Two previous climate lawsuits that dismissed claims under federal common law—AEP v. Connecticut in 2011 and Native Village of Kivalina v. ExxonMobil in 2012—left that question unanswered. The Supreme Court wrote in its AEP opinion that it did not address any claims as they relate to state law. In the Kivalina case, District Court Judge Phillip Pro wrote, “Displacement of the federal common law does not leave those injured by air pollution without a remedy. Once federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law.”

However, Keenan said in his order dismissing NYC’s climate suit, “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.” If other judges follow Keenan’s line of thinking, according to Parenteau, they will close the door to any court-ordered remedy for climate change.

Parenteau added that the cases have not progressed beyond preliminary hearings so neither side has had to provide supporting evidence for their arguments. He said that is an advantage for the fossil fuel companies. “The courts are operating in a vacuum. There are no facts,” he said. “I think the courts are going to see these [cases] very differently after a few weeks of trial.”

How far are the cases from that stage? Below is a summary of the current climate liability lawsuits against fossil fuel companies.

San Francisco and Oakland: Plan to Appeal Dismissal

After Alsup decided in February that the San Francisco and Oakland lawsuits, which were filed in September 2017 in state court against five major oil companies, should be heard in federal court, the cities did not appeal that ruling. After Alsup held a climate science “tutorial” in March and heard the fossil fuel companies’ motion to dismiss in May, he dismissed the case on June 25.

Alsup reasoned that climate change is too vast a problem for courts to deal with, and must be left to the political branches of government. “In sum, this order accepts the science behind global warming. So do both sides. The dangers raised in the complaints are very real. But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide. The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case,” he wrote in his order dismissing the case.  

According to a spokesman for the San Francisco City Attorney’s Office, the cities will appeal Alsup’s decision, but have not yet done so. Nor have they announced the basis of any appeal, or whether they will try to appeal Alsup’s original decision to hear the case in federal court.

San Mateo, Marin, and Imperial Beach: Sent Back to State Court, but that Remand Order Is Under Appeal

The two Bay Area counties and the southern California city were the first to sue, filing their complaints in July 2017 in state court under multiple claims including product liability claims in addition to nuisance and trespass. They were also the first to celebrate a victory of sorts when U.S. District Judge Vince Chhabria, working in the same courthouse as Alsup but coming to the opposite conclusion, ruled in March that the cases should be decided by California state courts.

The defendants in those cases, a group of 37 fossil fuel companies, appealed that decision to the Ninth Circuit Court of Appeals. That court denied the fossil fuel companies’ request for an extraordinary interlocutory appeal—a rarely granted motion for a higher court to overrule a lower one before a trial or ruling—on May 22.

The cities argue that federal law limits the grounds for appeal on a remand to state court. In motions filed by the cities they argue that the Ninth Circuit should review only the defendants’ “federal officer” argument, which claims that the companies at some point sold or extracted fossil fuels under government contract and therefore operated as federal officers. Chhabria called this claim “dubious” in his remand order, and defendants appear to lack confidence in this argument because they have not narrowed their appeal to this one claim. The court is expected to rule on the cities’ motion to restrict the defendants appeal to the federal officer claim sometime this fall.

Santa Cruz and Richmond: Also Remanded to State Court and Under Appeal

A third set of California cases includes suits from the city and county of Santa Cruz as well as the city of Richmond. These were also filed in state court and removed to federal court, but Chhabria ordered remand back to state court on July 10. However, he stayed the remand until the Ninth Circuit resolves the appeal in the San Mateo, Marin and Imperial Beach cases.

Parenteau said the Ninth Circuit court could decide to consolidate the California cases, considering the San Francisco case could be headed there next. “That would make sense, to pull all of the different strands together and make one decision about where do these cases belong, if anywhere,” he said.

New York City: Will Appeal Federal Judge’s Dismissal

After Keenan’s order to dismiss the case on July 19,  the city quickly announced it will appeal. “We are not giving up our fight to hold Big Oil accountable,” Mayor Bill de Blasio wrote on Twitter. “We’re appealing the dismissal of our lawsuit because corporate greed shouldn’t endanger our city’s future. Climate change is real. Big Oil knew it. They did nothing.” The case will go to the Second Circuit Court of Appeals.

Boulder, Colo., King County, Wash. and Rhode Island: Awaiting Hearings After Cases Moved to Federal Court

The city and county of Boulder and the county of San Miguel in Colorado filed suit in April in Colorado state court, becoming the first inland municipalities to sue over climate change impacts. Their lawsuit targeted just two companies—ExxonMobil and Suncor—for violations of the Colorado Consumer Protection Act, in addition to public nuisance and trespass claims. The case has been removed to federal court, but the communities have moved to send them back to state court.

Meanwhile, the county that is home to Seattle joined in the climate liability wave on May 8 with a suit filed in King County Superior Court. The defendants, the five largest oil companies, have removed the case to federal district court, and motions are now pending there.

Rhode Island became the first state to sue Big Oil with announcement of its lawsuit on July 2. The case was filed in state court and recently removed to federal court, but state officials have said they will move to return it to state court.

Baltimore: Suit Just Filed in State Court

The newest climate liability suit belongs to the city of Baltimore, filed in state court on July 20—the day after dismissal of the NYC suit. The lawsuit includes product liability claims, public nuisance and also alleges violation of the state consumer protection statute. The case has not yet been removed to federal court, but likely will be soon.  

As these newer cases start to unfold, the appeals courts will be making decisions on the California and New York City suits that are critical to the jurisdictional battle, shaping whether these suits can be considered and decided under state laws or are forever destined to be fighting the precedent of dismissal under federal law.