By Dana Drugmand
PROVIDENCE, R.I. — The latest installment in the debate over whether climate liability suits should be heard in federal or state court took place Wednesday in U.S. District Court in Rhode Island. The hearing dealt with a motion to remand to state court a case filed last July by Rhode Island against 21 oil and gas companies seeking damages from climate change-related impacts.
Rhode Island, which became the first state to file a suit in a wave of climate liability suits, initially filed the suit in state court and argued to U.S. District Court Judge William Smith that the case should return there. The oil companies, which include the giants Exxon, Chevron, BP, Shell and ConocoPhillips, want the case in federal court, where they have previously been successful persuading judges that climate issues should be dealt with by the legislative and executive branches and not the courts.
Chevron attorney Theodore Boutrous emphasized the “sweeping” nature of the claims and argued they involve federal and even international conduct. “This is one of the most sweeping claims in tort law history,” he said. “These are federal issues. We need to address them, but we can’t do it state by state.”
Rhode Island’s attorneys argued that because the complaint concerns only damage within the state, there should be no federal jurisdiction. State Assistant Attorney General Neil Kelly said it was the job of his office to address damages to the people of his state.
“Whether the lawsuit is in state court or federal court, however, the Rhode Island Attorney General’s Office is committed to protecting Rhode Island’s residents, businesses, and communities from the costs and damage associated with rising sea levels, more extreme storms, and other consequences of climate change,” the attorney general’s office said in a statement.
The suit alleges the companies knew their products contributed to climate change, which science has shown is overwhelmingly driven by the burning of fossil fuels, and failed to warn Rhode Island citizens about the danger created by their products. The state, which has 400 miles of coastline, seeks compensation for damages from sea level rise and other climate impacts.
Boutrous, who spoke on behalf of all the companies, argued that the jurisdiction question is a matter of determining if state or federal law applies to the issue. “It really is a choice of law question,” he said, arguing that federal law is better equipped to handle greenhouse gas emissions.
Attorney Vic Sher of Sher Edling, which is assisting the state in the case, said Boutrous’ choice-of-law point was wrong. “For jurisdictional questions, you can’t get to choice-of-law issues without deciding if you have jurisdiction first,” Sher said, adding that state courts are perfectly capable of determining if state or federal law applies.
Sher also argued the oil companies conflate two important concepts in the case: displacement and preemption. Previous climate cases have failed in federal court because they’ve ruled that the Clean Air Act displaces federal common law on the issue of greenhouse gas emissions. But those rulings did not say whether the statute completely preempts all climate change tort claims. Sher said the defendants are arguing incorrectly that the displacement ruling equals complete preemption of all climate-related claims.
Sher also highlighted what he said was another misrepresentation by the oil companies that the case is about federal energy policy and regulation of greenhouse gas emissions.
“The defendants are discussing some other complaint, not ours,” he said. “Our complaint is about tortious misrepresentation and failure to warn. We don’t seek to regulate emissions.”
When the judge questioned why the case is not about greenhouse gas emissions, Sher said that the claims center on the defendants’ conduct and behavior.
“The narrative of the complaint has to do with when the defendants knew about the harm and how they failed to move to lower carbon alternatives,” Sher said. “Emissions magnify the harm, but the tort is the deception.”
That point may be crucial to the case because that narrative proved successful for the oil companies in another recent case. U.S. District Judge William Alsup dismissed similar liability cases by the cities of San Francisco and Oakland against five oil companies largely because he said climate change was too large an issue to blame on five companies. He did not address the issue of the alleged illegal conduct and damages. The cities have appealed Alsup’s decision on that basis.