3 states fight for cities in suits against oil giants

Source: Anne C. Mulkern, E&E News reporter • Posted: Tuesday, May 8, 2018

California, New Jersey and Washington want to fight for two California cities suing oil companies for damages related to climate change.

The three states have asked a court for permission to file an amicus brief, or legal argument in support of San Francisco and Oakland in their suits against BP PLC, Chevron Corp., Exxon Mobil Corp., Royal Dutch Shell PLC and ConocoPhillips.

The states in separate cases argue that the oil companies’ products cause sea-level rise and other damages, creating a public nuisance. The cases are before Judge William Alsup in the U.S. District Court for the Northern District of California.

“States have an interest in the protection of the health and welfare of their residents and the environment, which are profoundly threatened by climate change,” the three states said in a court filing last week. “Given the interstate and global nature of climate change and its causes, Amici States have a strong interest in the development and application of state and federal common law to abate the harms caused within their jurisdictions by fossil fuels development elsewhere.

“Seeking abatement of environmental harms caused by conduct outside the states’ jurisdiction is a textbook example of common law public nuisance,” they added.

The San Francisco and Oakland suits are among several cases pitting municipalities against oil companies. In California, San Mateo County and Marin County in the San Francisco Bay Area; Imperial Beach in San Diego County; and Santa Cruz and Santa Cruz County also are suing multiple oil interests. In addition, Boulder, Boulder County and San Miguel County in Colorado sued Suncor Energy Inc. and Exxon Mobil, demanding “past and future damages” for warming impacts.

California, New Jersey and Washington with their new filing face off against 15 states supporting the oil companies: Alabama, Arkansas, Colorado, Georgia, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming. Those states asked for permission to file amicus briefs, and Alsup last week granted approval.

The 15 states argue that allowing the cases to advance “would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials.” The courts shouldn’t allow the suits to confound state and federal oversight “by establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-by-case basis.”

California, New Jersey and Washington in their legal filing noted their history fighting in climate cases.

“California and New Jersey brought state and federal common law public nuisance claims against several major electric utilities based on their contribution to climate change and litigated their claims to the United States Supreme Court,” they said.

They cited their role in American Electric Power Co. Inc. v. Connecticut, a case that sought to limit utilities’ greenhouse gas emissions. That case went to the U.S. Supreme Court, which held that corporations cannot be sued for greenhouse gas emissions because EPA regulates those through the Clean Air Act.

“In addition, Amicus California brought state and federal common law public nuisance claims against the six largest global automobile manufacturers based on their contribution to climate change,” California, New Jersey and Washington said in their filing. It cited a 2007 case against General Motors Corp.

State flexibility at stake?

The cities in their court filing sought to counteract arguments made in an earlier filing from the states supporting oil companies. Indiana, leading the 15 states, said that the cities’ lawsuits jeopardized a system of “cooperative federalism,” where the federal government creates federal standards and leaves the implementation to the states.

“States use their political bodies to secure environmental benefits for their citizens without sacrificing their livelihoods, and each does so in a different fashion,” Indiana argued. “A plan to modify greenhouse gas emissions that is acceptable to California or Vermont may be unacceptable to Indiana, Georgia, or Texas.”

The California, New Jersey and Washington filing said the Indiana arguments were flawed. For example, it cited “the example of National Ambient Air Quality Standards (‘NAAQS’), pursuant to which States adopt their own State Implementation Plans. … Current NAAQS standards, however, do not regulate greenhouse gas emissions, much less levels of fossil fuel production.”

Indiana also cited state climate programs led by states that are not part of the 15-state alliance supporting oil companies. Those include the Western States Climate Initiative, of which California and Washington are part, the 10-state Regional Greenhouse Gas Initiative, and California’s greenhouse gas cap-and-trade program.

“Indiana’s examples miss the mark, because Amici States and others did not establish these programs to implement the Clean Air Act,” California, New Jersey and Washington said. “Each program is a creation of state law.”

These state laws also aren’t threatened by the suits from San Francisco and Oakland seeking abatement from sea-level rise harms, California and the others said.

Meanwhile, the oil companies have filed motions to dismiss the cases. The cities have filed documents in response. Alsup will hear arguments on May 24.

Oakland and San Francisco in a filing rebutted several oil company arguments that the cases should be dismissed because they lack jurisdiction. Exxon Mobil, which is based in Texas, is among those making that contention.

Exxon has many ties to the Golden State, the filing said.

“Exxon does business in California and has been registered to do business in California since 1972,” it said. “Exxon, through its ExxonMobil Production Company, which apparently is not a separate legal entity, has offices in California and produces oil in California.”

In addition, the Texas company through its subsidiaries and agents owns or operates port facilities in California, the filing said. Until 2016, Exxon through agents owned and operated the Torrance refinery in Los Angeles County, Calif., and the Benicia refinery in the San Francisco area for 30 years until 2000. Through agents, it said, “Exxon transports crude oil from Alaska to California that is used to make fossil fuel products.”