Judge orders ‘tutorial’ on climate science in oil case

Source: Anne C. Mulkern, E&E News reporter • Posted: Friday, March 9, 2018

A federal court in California will hold a hearing on climate science as two cities pursue lawsuits against oil companies for damages related to sea-level rise.

Judge William Alsup in the U.S. District Court for the Northern District of California scheduled a “tutorial” session on March 21 in San Francisco.

The cities of Oakland and San Francisco, and the oil companies they’re suing — BP PLC, Chevron Corp., ConocoPhillips, Exxon Mobil Corp. and Royal Dutch Shell PLC — must present scientific information on global warming.

Alsup on Monday asked both sides to answer eight questions. Those inquires included: “What caused the various ice ages (including the ‘little ice age’ and prolonged cool periods) and what caused the ice to melt? When they melted, by how much did sea level rise?”

He also asked, “What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere? What are the main sources of heat that account for the incremental rise in temperature on Earth?”

It’s a unique hearing, several experts said.

“This is the first wide-ranging proceeding of any kind focusing on climate science,” said Rick Frank, director of the California Environmental Law & Policy Center at the University of California, Davis.

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, called the hearing “quite unusual.”

“Judge Alsup has done this before, once, in a lawsuit involving Google and Uber,” he said in an email. “I have asked a number of lawyers, and none has heard of anyone else doing anything like this.”

He added that “questions of the validity of certain aspects of climate science have been part of climate litigation since at least Massachusetts vs. EPA. But the ‘tutorial,’ involving fossil fuel companies alleged to be involved in a long-running effort to obscure the science going on the record about their current views, could be an important, revealing moment.”

Frank noted, however, that both sides will likely present briefings from a perspective favorable to their side.

“My only question is whether [Alsup] is going to be satisfied with what he gets with the climate science filtered through the oil companies with their attorneys on one side, and the cities and their attorneys on the other,” Frank said.

Alsup ruled last month that the cases must stay in federal court, a move the oil companies wanted. The cities — which filed separate lawsuits originally in state court — had petitioned to transfer the cases back to the state venue. Alsup said the issues were federal in nature.

He let stand for now, however, the cities’ claim that the oil companies through their production of fossil fuels created a “public nuisance.” The suits seek funding for climate adaptation efforts like building sea walls and raising low-lying buildings.

Daniel Farber, law professor at the University of California, Berkeley, said he believes Alsup “primarily wants to understand the issues, but this also forces the parties to show where they actually agree, which saves time later.”

Michael Wara, senior research scholar at the Stanford Woods Institute for the Environment, was surprised to hear about questions planned for the tutorial, including about the ice ages.

“The origin of the ice ages has nothing to do with what is the issue in this case,” Wara said. “It’s just not relevant. And the idea that experts presented by either side are going to be appropriate neutral arbiters to some of these questions is pretty dubious.”

Wara said the hearing was “a great example of why it’s better to have expert regulators making climate policy than judges.”

“Judges are generalists,” Wara said. “They’re not trained to know about climate science, or climate policy, or the industries that are implicated by climate change. What this case theoretically will do is put them in a position of crafting a remedy.”

Frank disagreed.

“We’ve been seeing this steady trickle turning into a flood of climate litigation,” Frank said. “Judges or juries in some cases are going to need some grounding in foundational climate science.”