New York City infrastructure is particularly vulnerable to climate impacts of extreme weather and sea level rise, at the heart of its climate caseNew York City's infrastructure is vulnerable to climate impacts of sea level rise and extreme weather, and the city is suing big oil companies to hold them accountable. Photo credit: Metropolitan Transportation Authority via Flickr

By Karen Savage

A lower court’s decision to dismiss New York City’s climate liability suit against five major oil companies should be reversed, argued attorney John Moore, who presented the city’s appeal before a three-judge panel of the Second Circuit Court of Appeals on Friday.

Moore said the U.S. District Court judge misinterpreted the case, which is not an attempt to regulate the company’s greenhouse gas emissions as that judge ruled, but rather an attempt to hold the oil giants liable for damage done to the city by their products.

New York, which filed its lawsuit in 2018 against BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell, is seeking billions in damages to cover infrastructure improvements needed to protect its residents from the increasing effects of climate change. The suit includes federal claims of public nuisance, private nuisance and trespass and seeks monetary damages to help pay for the costs of protecting the city. 

U.S. District Judge John Keenan ruled last year that the city’s claims are covered under federal law, but involve greenhouse gas emissions that cross state lines. That puts them under the jurisdiction of the Clean Air Act, which authorizes the Environmental Protection Agency to regulate greenhouse gas emissions. Keenan also rejected the city’s contention that state law claims apply as “illogical” and dismissed the suit with prejudice, meaning the city may not bring the same claim again.

“The city is not seeking to impose regulations,” Moore told the appellate court, but rather seeking to hold the oil giants responsible for the damage done to the climate and to New York City.

The city has argued that if its claims are displaced by the Clean Air Act, it would use state law claims.

When consumers use fossil fuel products as intended, they release carbon into the atmosphere, causing sea level rise and other climate impacts that are harming the city, Moore said. He added that the suit is not seeking liability for the companies’ direct emissions, nor is it an attempt to prevent them from engaging in their business operations.

The city contends that its claims fall under established legal principles, including nuisance laws that hold manufacturers liable for selling products they know will cause harm. Moore told the court the city’s suit is similar to asbestos, tobacco and lead paint liability suits in which companies have been held liable for damage done by the use of their products.

Theodore J. Boutrous, Jr., a Chevron attorney, who argued on behalf of the fossil fuel defendants, said the city is asking the court to regulate emissions by endorsing a “sweeping world-wide tort that no court has ever recognized.”

The companies contend the dismissal should stand because the city’s claims are covered under federal law, which does not provide a remedy for relief of those claims.

The claims are not covered under state law because they attempt to “apply New York law to oil production around the nation and around the world,” Boutrous said. He said the state court isn’t likely to allow “novel torts,” involving issues best left to the executive and legislative branches.

Boutrous acknowledged that climate change is a serious issue, but said the city’s suit would in essence regulate the production of fossil fuels because it is the products that create emissions.

“Without emissions, there is no climate change,” Boutrous told the court, adding that under the city’s logic “the only way to stop liability here is to stop producing oil.”

The court is expected to issue a decision in the coming months.

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