Governors' Wind Energy Coalition

A panel of judges last week grilled an industry attorney about whether a Rhode Island lawsuit truly raises federal concerns as the bench grappled with another attempt by oil and gas companies to throw a climate damages case to federal court.

The 1st U.S. Circuit Court of Appeals heard arguments Friday in the case, which is one of multiple climate actions seeking to hold the oil and gas industry financially accountable for global warming effects like sea-level rise through state nuisance, trespass and product liability laws.

“Rhode Island argues that the harms caused are not from the extraction of fossil fuels per se, but from alleged efforts to mislead and promote their product by misinformation,” said Judge Juan Torruella, a Reagan appointee.

Gibson, Dunn & Crutcher LLP attorney Theodore Boutrous argued last week that Rhode Island’s case raises claims involving federal officers and should therefore be handled by federal judges.

Boutrous insisted that the misinformation claims were a small piece of the whole argument, which is rooted in oil and gas production.

“If you take out the production, your honor, there’s no global warming,” Boutrous said of the state’s arguments.

He continued later: “You cannot decouple the misrepresentation claim from oil and gas production.”

That argument is an attack at a “straw case,” countered Vic Sher, a partner at the firm Sher Edling LLP and counsel for Rhode Island.

He insisted that no such federal actions or relationships exist in the case, nor does the lawsuit target emissions or energy production.

“You cannot fairly read the complaint, as counsel attempts to do, to divorce deception from every single one of the claims that are asserted,” he said.

Sher also broke down the contested government leases that energy attorneys cited in their arguments, claiming that the contracts were purely commercial deals for private profit, similar to grazing or logging contracts on federally held lands.

Though oil companies have moved cases like Rhode Island’s to federal courts, where the industry could have an advantage, judges have largely tossed the complaints back to state benches where they were originally filed.

Oil companies argue that the cases involve production activities under federal oil and gas leases, which means that state remand orders issued by federal district courts — which usually can’t be appealed — can be reviewed by circuit court judges according to statutes on federal officer involvement.

The number of climate damages cases has grown significantly in recent years, with lawsuits currently pending in more than a dozen local, state and federal courts. Three cases were filed this month alone from cities in New Jersey and South Carolina, as well as the state of Delaware.

Many of the cases filed this year also invoke a newer combination of laws, including consumer protection and anti-fraud statutes.

Chief Judge Jeffrey Howard, appointed by President George W. Bush, and Judge O. Rogeriee Thompson, an Obama pick, also sat on Friday’s panel.