California cities spurned in court dump attorneys on climate change case

Source: Benjamin Hulac, E&E News reporter • Posted: Wednesday, November 28, 2018

Two California cities that lost lawsuits seeking to make the largest oil companies pay for climate impacts have switched attorneys as they appeal.

San Francisco and Oakland fired Seattle-based firm Hagens Berman Sobol Shapiro LLP and hired San Francisco-based Sher Edling LLP. That firm represents Imperial Beach, Marin and San Mateo counties; Richmond; Santa Cruz and Santa Cruz County; Baltimore; and a fishermen’s group in suits against oil companies.

San Francisco and Oakland are asking the 9th U.S. Circuit Court of Appeals in California to reverse multiple decisions made by Judge William Alsup of the U.S. District Court for the Northern District of California. In July, he threw out the cases targeting Chevron Corp., BP PLC, ConocoPhillips, Exxon Mobil Corp. and Royal Dutch Shell PLC.

“As we move into the next phase of this litigation, Sher Edling and Altshuler Berzon will be assisting the City,” John Coté, spokesman for San Francisco City Attorney Dennis Herrera, said in an email. “They offer valuable experience in appellate and environmental law, including climate change litigation.

“Our lawsuit is about holding fossil fuel companies accountable for the costs San Francisco is incurring to protect its taxpayers from rising seas that these companies knowingly caused. We’re looking forward to doing just that in the Ninth Circuit and beyond,” he added.

The cities argued that the companies make and sell products that when combusted create a public nuisance, causing sea-level rise and other impacts. The suits also said the companies knew the global dangers of warming for decades and hid that information while protecting their assets.

Alsup, a Clinton appointee, last month granted a request from the oil companies to toss the cases. Alsup said climate change is a reality, but that evaluating blame for the impacts of warming is a political issue and not one for the courts to decide. It’s the same argument the oil companies made, citing Supreme Court decisions that said EPA has jurisdiction over policing greenhouse gas emissions.

Another legal challenge Sher Edling is handling went differently from the San Francisco and Oakland cases. Suits involving Imperial Beach, San Mateo and Marin counties; Richmond; and Santa Cruz and Santa Cruz County went before federal Judge Vince Chhabria, who works in the same courthouse as Alsup. Chhabria ruled earlier this year that those cases belonged in state court, where they started. The oil interests appealed that decision, and that’s also pending before the 9th Circuit.

Matt Pawa, a lead attorney with Hagens Berman Sobol Shapiro, did not immediately respond to a request for comment on the law firm’s getting dumped.

Vic Sher, partner at Sher Edling, said in a statement that “we are now assisting both San Francisco and Oakland and look forward to working with the cities as they move forward with their appeal of Judge Alsup’s ruling.”

Sher did not respond to questions about his strategy in the appeal. He also would not say if he had approached the cities about changing lawyers or if they approached him. Sher was national co-lead counsel for plaintiffs in federal litigation involving methyl tert-butyl ether, or MTBE, a gasoline additive found to have polluted groundwater after spilling or leaking at fueling stations.

Energy in Depth, an oil group ally, expressed skepticism that changing lawyers would help the cities.

“Though Sher Edling has succeeded in convincing a handful of municipalities to join its cause, the lawsuits it has filed are anything but a sure bet,” the group said in a statement. “All of their cases are still in the pre-trial phase, with multiple judges deliberating on the appropriate jurisdiction. If the courts decide that global warming is beyond the scope of a state court, Sher Edling’s lawsuits will likely be dismissed as quickly as Pawa’s.”