By Dana Drugmand
The five oil and gas companies sued by New York City last year over climate change-related damages doubled down on their argument that courts should not be in the business of regulating global warming. They argued their case anew in a brief they filed to the Second Circuit Court of Appeals last week.
The brief rehashes many of the arguments that successfully convinced U.S. District Judge John Keenan to dismiss the city’s case last year, emphasizing the “sweeping” nature of climate change and sidestepping the question of liability for damages caused, which was the focal point of the lawsuit.
Defendants BP, Chevron, ConocoPhillips, ExxonMobil and Shell emphasized instead the expansive nature of global warming and consumers’ role in the burning of fossil fuels. “Plaintiff seeks relief for alleged injuries resulting from Defendants’ worldwide fossil-fuel production and the global greenhouse gas emissions of countless actors, including New York City and its residents,” they wrote in the brief.
The city’s appeal, however, emphasizes that its complaint is not about international conduct or regulating emissions and indeed falls under state common law. The city said that Keenan “dismissed a complaint that the City of New York never filed.” As the city’s brief said, “This suit would not require a court to impose liability based on Defendants’ emissions of greenhouse gases or to dictate any regulation of pollution. Nor is the City attempting to ‘solve’ the problem of climate change.”
The oil companies argue that federal, not state, common law governs the claims, and that because the Clean Air Act gives the Environmental Protection Agency jurisdiction over carbon emissions, federal common law does not apply. That argument relies on two previous climate change cases—AEP v. Connecticut and Native Village of Kivalina v. ExxonMobil et al.—in which courts ruled in favor of power plant and fossil fuel companies on that basis.
The companies also contend that the cases raised questions of international conduct and federal policies, none of which is not subject to state law. The companies even repeatedly claimed that this lawsuit “threatens to shut down” fossil fuel production and the industry itself.
Those arguments swayed Keenan, who ignored the liability question and said that it would be “illogical” for 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.”
The city argues the state law claims of nuisance and trespass are to “obtain compensation for costs of redressing the effects of global warming,” effects that the city said the industry has been aware of for decades. The city’s complaint centers on the companies’ knowledge that lawful use of their products would result in harm, not on the emissions themselves.
“As detailed in our brief, the district court should have considered our claims under established legal principles, including nuisance laws, that permit manufacturers to be held liable for selling products with the knowledge that they will cause environmental harm,” the NYC Law Department said in a statement on the city’s appeal of the case.
But defendants focus on the emissions in their brief, mostly ignoring the allegation that they knew about the harm their product would cause and engaged in public campaigns of misinformation on the science of climate change.
“Warned by their own scientists of the catastrophic weather events that would result from climate changes attributable to the production and use of fossil fuels, these companies protected their own vulnerable assets, while downplaying the seriousness of these threats to the public and the environment,” the city said.
Instead of defending against this allegation, the oil companies highlighted the global nature of global warming, writing: “Plaintiff seeks to hold Defendants liable under New York law for changes in the Earth’s climate allegedly resulting from Defendants’ worldwide extraction and production of fossil fuels and the emissions produced by billions of third parties who use those products all over the world.”
The United States government will file a friend-of-the-court brief supporting the oil companies in the coming weeks. New York City then has until March 25 to file a reply.