By Karen Savage
The Trump administration is supporting the five oil companies being sued by New York City to pay for damages related to climate change, filing a friend-of-the-court brief asking the Second Circuit Court of Appeals to uphold the dismissal of the case.
The federal government contends in the brief that the city’s claims against Exxon, BP, Shell, ConocoPhillips and Chevron shouldn’t be decided by a state court. It argues the Clean Air Act prevents the city from pursuing nuisance claims because the pollution that causes global warming originates from outside the state. It also argues that the claims should not be considered in a federal court because that would violate the separation of powers guaranteed by the Constitution.
The Trump administration also says that New York’s claims “interfere with the conduct of foreign policy and regulation of foreign commerce” and have “great potential for disruption or embarrassment for the United States in its international relations that cannot be outweighed by the relative interests of New York state.”
“We are disappointed but not surprised that the Trump administration has chosen to weigh in against the City in this case,” said a spokesman for the New York City Law Department. “We look forward to making our case to the Second Circuit as we seek to hold fossil fuel companies accountable for the costs the City is incurring in responding to climate change.”
Keenan ruled in July that the courts are not the proper forum to address harms resulting from climate change. He said issues stemming from greenhouse gas pollution should be tackled by the executive and legislative branches.
The city’s appeal argues 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.”
New York City’s complaint includes claims of public nuisance, private nuisance and trespass and seeks monetary damages from the five oil giants to help pay for the costs of protecting the city from climate impacts. The city argues the state law claims of nuisance and trespass are to “obtain compensation for costs of redressing the effects of global warming,” and says the industry has known for decades that lawful use of their products would result in harm. The city emphasized the claims are not about regulating emissions.
The oil companies maintain that the city’s claims involve domestic greenhouse gas emissions, which are covered under the Clean Air Act. They say New York City—and it’s residents—“have long consumed Defendants’ products and have thus willingly contributed to greenhouse gas emissions” that have caused climate change.
Additional friend-of-the-court—or amicus—briefs in support of the oil companies have recently been filed by the National Association of Manufacturers, the U.S. Chamber of Commerce and a coalition of Republican attorneys general.
Then-New York Attorney General Barbara Underwood, along with eight other Democratic state attorneys general submitted a brief in support of the city in November, as did a coalition of local government associations, including the National League of Cities, the U.S. Conference of Mayors and the International Municipal Lawyers Association.
Both sides have requested oral arguments, which will be scheduled for later this year.