The busy port of Oakland is at risk from climate change-driven sea level rise, the city argues to the Ninth CircuitThe Port of Oakland is among the infrastructure at risk of inundation by sea level rise in the two Bay Area cities suing the oil industry for climate damages. Photo credit: Justin Sullivan/Getty Images

By Karen Savage

San Francisco and Oakland are arguing that a U.S. District Court judge erred when he denied a motion to return their climate liability suit to state court and also erred in its subsequent dismissal of the suit, according to a brief filed by the cities in the Ninth Circuit Court of Appeals on Monday.

The cities maintain that Judge William Alsup improperly rejected the cities’ argument that their claims arise under California public nuisance law when he ruled in February 2018 that federal common law applies in climate liability cases. The briefing process is now complete in the cities’ appeal and the court is expected to announce its decision, or potential next steps in the case in the coming months.

The cities say that Alsup mischaracterized their claims and in their brief, reiterated that they are not seeking to regulate the companies, impose restrictions on their greenhouse gas emissions or prevent companies from producing fossil fuels.

“While Defendants are entitled to challenge personal jurisdiction and the sufficiency of the People’s public nuisance claims, they must do so in the proper forum, based on the actual allegations of the People’s public nuisance claims, they must do so in the proper forum, based on the actual allegations of the People’s complaint and the well-established elements of California public nuisance law,” the cities wrote. 

Oakland and San Francisco filed suit against BP, Chevron, ConocoPhillips, ExxonMobil and Shell in 2017, alleging that the companies’ production and marketing of fossil fuels— which are the main driver of climate change—has created an unlawful public nuisance because the companies knew the products’ dangers and proceeded to sell them anyway. 

The cities, whose suits have since been consolidated, are asking the companies to pay for sea walls and other infrastructure needed to protect the city from rising sea levels, frequent and more severe storms, and other impacts of climate change.

They contend that the companies are responsible because they have known for decades that their products are the overwhelming cause of climate change, which will damage the cities’ public infrastructure. They also say that the oil companies deliberately misled the public through “large scale, sophisticated advertising and communications campaigns to promote pervasive fossil fuel usage.”

After the suits were filed in California court, the defendants removed the suits to federal court and Oakland and San Francisco have been fighting to return them to state court, where they were filed. The cities maintain their claims are covered under California’s strong public nuisance laws. Last year Alsup denied a motion to return the suits to state court and few months later dismissed the suits from federal court.

In his dismissal, Alsup said 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.

Alsup also said the problem of climate change is too vast to hold just five companies liable. He said the executive and legislative branches of government are better suited to solve the climate crisis.

Similar suits filed by the counties of Marin, San Mateo, Santa Cruz and the cities of Imperial Beach, Santa Cruz, Richmond have been consolidated separately and are awaiting hearings by the Ninth Circuit Court of Appeals to decide whether the suits should be heard in state or federal courts.

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