12 states ask judge to toss climate suit against Big Oil

Source: By Anne C. Mulkern, E&E News reporter • Posted: Friday, October 5, 2018

Indiana and 11 other states asked a federal judge yesterday to throw out a lawsuit in Washington state that seeks to make petroleum giants pay for damages related to climate change.

The states argued that allowing the case to advance “would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials.” The courts shouldn’t allow the suit “to confound” state and federal oversight, they said.

“Emissions policy (or, as is more likely, multiple conflicting emissions policies) should not be established on a piecemeal, ad hoc, basis,” the states told Judge Robert Lasnik of the U.S. District Court for the Western District of Washington.

Opponents to the case, filed by King County, Wash., comprise attorneys general from Alabama, Arkansas, Colorado, Georgia, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas and Utah. King County is suing BP PLC, Chevron Corp., Exxon Mobil Corp., Royal Dutch Shell PLC and ConocoPhillips.

The states said they have a strong interest in the case because the “list of potential defendants is limitless,” since the plaintiffs’ theory on liability is tied to the promotion of fossil fuels. That could also allow states to be sued because they sometimes operate utilities and are “significant users of fossil fuels,” the attorneys general wrote in their brief.

King County, home to Seattle and more than 2 million people, seeks an order requiring the companies to pay the costs of adapting infrastructure to climate damages, like stormwater management and salmon recovery systems. The abatement fund could be in the hundreds of millions of dollars, county attorneys said.

The opponents’ brief warned that it could be more expensive.

“Such a remedy could cost several billion dollars and seriously impact Defendant’s ability to provide energy to the rest of the country,” it said. That would impose limitations on businesses outside King County, it said, arguing that it’s a violation of the Constitution’s commerce clause.

The amicus brief cited American Electric Power Co. v. Connecticut. In that case, states sought to cap utility emissions. It went to the Supreme Court, which held that corporations cannot be sued for greenhouse gas emissions because EPA regulates those through the Clean Air Act.

The King County case is one of many climate lawsuits against oil companies. In California, Imperial Beach, San Mateo, Marin County, Richmond, Santa Cruz and Santa Cruz County have sued two dozen fossil fuel companies and trade associations. A 9th U.S. Circuit Court of Appeals decision is pending on whether to send those suits back to state court.

The appellate court will also decide whether to reverse a judge’s dismissal of lawsuits from San Francisco and Oakland, which sued five of the biggest oil companies.

There are other lawsuits against oil firms in Colorado, Maryland and New York.