By Karen Savage
San Francisco and Oakland have filed an appeal of a federal judge’s decision to throw out their climate liability lawsuits against five major oil companies. The lawsuits, dismissed last year, demanded the companies pay for the costs of sea walls and other infrastructure necessary to protect the cities from ongoing and future consequences of climate change.
In the appeal, which was filed Wednesday in the Ninth Circuit Court of Appeals, San Francisco and Oakland contend that U.S. District Judge William Alsup mischaracterized their public nuisance claims. Alsup claimed the cities were seeking to regulate greenhouse gas emissions. They contend that Alsup erred when he denied motions to remand the case to state court and further erred when deciding the court did not have jurisdiction over four of the defendants.
In the suit, initially filed in California state court in 2017, the cities allege that “production and promotion of massive quantities of fossil fuels” by BP, Chevron, ConocoPhillips, Exxon and Shell has caused—and is continuing to worsen—climate change-driven sea level rise, which endangers the lives of their residents.
The cities want the case heard in state court, where they were originally filed, because they believe they will have a better chance of succeeding under California’s strong public nuisance laws. Federal judges have long been reluctant to rule on climate change issues, ruling in several precedents that the matter should be left to the legislative and executive branches.
San Francisco city attorney Dennis Herrera said the companies should be liable for damages because they knowingly sold a product that now forces cities to spend billions of dollars on infrastructure, like seawalls and fortified storm water systems, to protect businesses and residents.
“Fossil fuel companies have known for decades about the direct link between their products and climate change,” Herrera said. “They intentionally hid that information and misled the public to maximize their profits. Right now, San Francisco and other coastal cities are paying the price of that deception.”
In his dismissal, Alsup said the problem of climate change is too vast in scope to hold just five companies liable and said solving the climate crisis is best left to the executive and legislative branches of government.
Alsup also said that the companies were not liable under a public nuisance claim because their conduct was not unreasonable and because everyone has benefitted from fossil fuels. He said that to allow the cities to seek compensation for damages was equivalent to regulating greenhouse gas emissions.
Herrera said the suit falls clearly under California public nuisance law and belongs in state court.
In their appeal, the cities reiterate that they are not seeking to regulate the companies, impose restrictions on their greenhouse gas emissions or stop the them from producing fossil fuels.
Herrera said the cities are going to do everything they can to ensure that the oil giants pay to fix the problem they created.
“These fossil fuel companies made money hand over fist, knowing they were putting our cities at risk. Now they want taxpayers to foot the bill while they walk away with the profits,” he said. “Not on our watch.”