NYC Mayor Bill De Blasio announced the city has appealed the dismissal of its climate suit vs. five oil companiesNew York City Mayor Bill de Blasio announced the city has appealed the dismissal of its climate suit vs. five oil companies. Photo credit: Drew Angerer/Getty Images

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By Karen Savage

New York City has filed its appeal of a federal judge’s decision to throw out its liability suit against five major oil companies for their contributions to climate change, arguing that the judge did not rule on the merits of the claim that was filed.

In its appeal, the city contends that U.S. District Judge John Keenan “misunderstood the city’s allegations and, on the basis of that misunderstanding, erroneously concluded that various federal law doctrines barred the city’s claims.”

New York’s suit, filed in January against Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell, sought billions in damages to cover infrastructure improvements needed to protect New Yorkers from the increasing effects of climate change. The suit includes federal claims of public nuisance, private nuisance and trespass and seeks monetary damages to help pay for the costs of protecting the city.

Keenan ruled in July that the city’s claims are covered under federal law, but involve greenhouse gas emissions that cross state lines. That puts them under the jurisdiction of the Clean Air Act, which authorizes the Environmental Protection Agency to regulate greenhouse gas emissions.

The city had also argued that if its claims are displaced by the Clean Air Act, it would use state law claims, an argument that Keenan rejected as “illogical.” He dismissed the suit with prejudice, meaning the city may not bring the same claim again.

New York said Keenan’s decision should be re-evaluated by the Second Circuit Court of Appeals.

“No federal policy or statute regulates the relief sought in this suit—compensation for local harms resulting from the effects of climate change—or purports to prevent state-law tort suits seeking such relief,” city officials wrote in the appeal.

The city contends that its claims fall under established legal principles, including nuisance laws that hold manufacturers liable for selling products they know will cause environmental harm. It emphasized in its appeal that the suit is not about the regulation of greenhouse gases and the Clean Air Act does not address the claims presented in its suit.

“While the Clean Air Act displaces claims under federal common law seeking to directly regulate greenhouse-gas emissions, it is silent as to claims seeking monetary damages for harms caused by the production, promotion and sale of fossil fuels,” the appeal said.  

The city maintains that the oil giants profited from the production and marketing of products they knew would harm the climate if used as intended, making it a product liability suit.  

In his dismissal, Keenan likened the suit to Native Village of Kivalina v. ExxonMobil, but New York said unlike Kivalina, it does not seek to curtail emissions.  

“Defendants promoted their fossil fuel products by concealing and downplaying the harms of climate change, profited from the misconceptions they promoted as to the cause of climate change, and knowingly shifted the cost of these harms to cities like New York,” the city said in its appeal, adding that nuisance and trespass laws offer a remedy for those wrongs.

Because it seeks compensation for the cost of protecting itself and its residents from local impacts of climate change, the city also challenged Keenan’s ruling that the suit addresses matters that should be delegated to the federal government’s Executive Branch for a national solution.   

“States and cities have important and obvious interests in addressing the consequences of the changing climate that are felt within their borders,” the city said. It also said there is no “uniquely federal interest” in the case and maintains that it merely seeks compensation for local harms.

New York also pushed back on Keenan’s assertion that the city’s claims implicate “countless foreign governments and their laws and policies” and would raise foreign policy implications.

“The court noted that climate change is the subject of international agreements, but it never articulated how a suit for damages between the City and private defendants would pose an obstacle to the accomplishments and execution of those agreements,” the city said, adding that the United Nations Framework Convention on Climate Change and the Paris Climate Accord pertain to nations, not to private corporations.

Jamie Henn, co-founder and strategic communications director for 350.org, a climate advocacy organization, said there is little doubt New York City is being harmed by climate change.

“There’s no doubt it’s Big Oil’s fault; just read the latest Intergovernmental Panel on Climate Change report,” said Henn, noting how Hurricane Sandy recovery, a mega-storm fueled by climate change, is still ongoing more than six years after the storm.

The city said in a press release that it is seeking to recover billions of dollars it has spent and will be required to spend on adaptation and mitigation of climate impacts.

Its 8.5 million residents are already experiencing increased temperatures, flooding, erosion and higher threats of extreme weather events and catastrophic flooding.  All of those impacts are expected to continue at increased rates.

New York Mayor Bill de Blasio said via Twitter that the city is standing up for its residents.

“Big Oil knew burning fossil fuels was causing climate change and endangering our city, but they cared more about profits than the planet. We will hold them accountable.”