New York City's climate suit draws support in its federal appealNew York City is appealing the dismissal of its climate liability suit against five oil companies. Photo credit: Spencer Platt/Getty Images

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By Karen Savage

New York City received support from four sources in its climate liability suit against the oil industry: friend-of-the-court briefs filed in favor of its appeal of the case’s recent dismissal by a federal judge.

Filed in the U.S. Court of Appeals for the Second Circuit, one was written by New York Attorney General Barbara Underwood and signed by eight other Democratic state attorneys general, including California’s Xavier Becerra. A coalition of local government associations, which includes the National League of Cities, the U.S. Conference of Mayors and the International Municipal Lawyers Association, submitted a brief.

Another was filed by three environmental justice organizations in New York: the New York City Environmental Justice Alliance (NYC-EJA), UPROSE and THE POINT Community Development Corporation. Catherine Sharkey, a legal scholar who has written extensively on torts, product liability and class actions, also submitted a brief supporting the city’s case.

New York filed suit against Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell in January, seeking 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.

U.S. District Judge John Keenan dismissed the suit in July, ruling 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 appealed last week, contending that 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.”

Underwood, who recently filed a lawsuit against Exxon for climate fraud under the state’s investor protection statute, said in the AGs’ brief that Keenan was wrong to dismiss states’ rights to tackle the problem of climate harms.

“The district court’s dismissal of the City’s claims reflects its incorrect view that federal law alone governs all actions touching on climate harms,” the brief said. “Courts have consistently held otherwise, recognizing that States have not only critical interests in abating climate change and mitigating climate harms, but also authority to address those interests.

“The district court’s holding here would lead to the extraordinary conclusion that no law at all applies to the environmental harms caused by defendants’ allegedly tortious activities.”

In her brief, Sharkey argued that “the law of nuisance has long covered both private and public disputes that cause injuries, including claims where environmental pollution caused the injuries.”

“A tort claim seeking compensation for climate change-related harms is a special species of that kind of environmental pollution case. But applying nuisance law here is nothing extraordinary. It represents a natural extension of long-standing theoretical and doctrinal principles of tort law,” Sharkey wrote.

In its complaint, the city 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.”

The local government associations argue in their brief that until Keenan’s decision—as well as a similar ruling by the federal judge who dismissed similar cases by San Francisco and Oakland—every court that “examined the viability of state-based nuisance and tort claims for climate change concluded that state law claims survived displacement of federal law claims.”

Climate change is not a “uniquely federal interest,” said the local governments arguing that cities are at the forefront of climate action and have used state law to implement solutions to combat the local effects of climate change.

They contend that Keenan’s decision could pose risk to cities across the country by preventing them from using state law claims to pursue remedies for local environmental harms, including climate change.

The local governments support the city’s assertion that Keenan misunderstood New York’s allegations and “on that basis, converted state law claims challenging one set of behaviors—production, marketing, and sale of a product—into a federal law claim challenging another set of behaviors—combustion of the product and emission of greenhouse gases,” they wrote in the brief.

“Even if this court were to accept the district court’s determination that there is a federal common law claim that could apply in this context, its displacement would demand the state law claim be heard on its own terms.”

The environmental justice organizations said local communities are on the frontline of climate change and the most vulnerable are low-income communities and communities of color. Those communities have fewer resources to prepare and recover from climate hazards such as extreme heat, extreme storms, and flooding.

They said Hurricane Sandy “highlights the need for localities to be proactive in adaptation and protection efforts.”

“Fossil fuels have already had a devastating effect on the well-being of New York City,” the organizations said in their brief.

“Sandy demonstrated the uniqueness of New York’s position and its need to fight climate change on a local level with all available resources and tools.”