NYC tests climate ‘nuisance’ theory in federal court

Source: Saqib Rahim, E&E News reporter • Posted: Friday, June 15, 2018

NEW YORK CITY — A federal judge gave no obvious indication yesterday that he plans to hear New York City’s climate lawsuit against five multinational oil companies.

Judge John Keenan of the U.S. District Court for the Southern District of New York yesterday heard arguments from Chevron Corp. and the other oil giants seeking to quickly scuttle New York City’s litigation.

The city claims the oil companies should compensate it for the cost of adaptation. The oil companies responded that climate change is a complex global issue that should be addressed by the U.S. government, not the courts.

Keenan, an appointee of President Reagan, grilled both sides but reserved his decision.

If he chooses to hear the case, that alone will mark a win for New York City and the other local governments that are testing out a new legal strategy for suing fossil-fuel companies directly. A similar case is being heard in California (Climatewire, June 13).

The oil majors — Chevron, BP PLC, ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell PLC — warn that legitimizing this legal strategy, anywhere, could unleash a flood of “global warming tort” lawsuits. “It really would involve everybody suing everybody for living our lives the way we do,” Chevron’s attorney, Theodore Boutrous of Gibson, Dunn, & Crutcher LLP, said in arguments yesterday.

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, said there have been climate “nuisance” lawsuits before. But New York’s and California’s are part of a new class of suits, he said, focused on the production and marketing of fossil fuels.

“I think that this is a litigation effort that has been theorized about and under consideration and talked about for many years, for about a quarter of a century,” he said.

“Now we’re at a moment where the federal branch has failed,” he added. “These lawsuits represent a pressure point, and potentially an important pressure point, on the industry to do more to combat climate change.”

Much of yesterday’s hearing predictably featured a flurry of case law, questions of standing, and other legal technicalities. But at the root, the sides were basically debating whether New York City is pulling a legally extraordinary maneuver, or whether it’s within the fairway and is worth hearing at trial.

They were also debating whether New York City’s alleged injury from climate change should be addressed in a courtroom, or whether it’s the responsibility of Congress and the executive branch because of the interstate and international character of the issue.

Matthew Pawa, an attorney with Hagens Berman Sobol Shapiro LLP who’s representing New York City, said it’s the former. “This is a case of absolute first-rate importance to the city,” he said.

Who’s at fault?

The city claims its residents have suffered, and are projected to suffer, the consequences of a changed climate: rising sea levels, more intense heat waves and extreme rains.

Pawa argued that the oil companies are liable because they knew the oil and gas they produced would contribute to climate impacts and even tried to mislead the public about it. He said they’re not responsible for all the oil and gas they’ve ever produced — only what they produced after they knew the consequences.

New York City is requesting compensation for what it’s done, and what it will have to do, to adapt to climate change.

Keenan noted, however, that the New York City police, fire and sanitation departments all have cars and trucks. “Aren’t the plaintiffs using the product that’s the subject of the lawsuit?”, the judge asked Pawa, who said yes.

Earlier, Keenan had brought up the legal principle of in pari delicto, which takes account of whether a party is equally at fault for the thing they’re suing for.

The oil companies don’t dispute the science of anthropogenic climate change. But they urged Keenan to dismiss the case because, as they argued, climate change is of such complexity and scope, requiring tradeoffs between energy access and environmental consequences, that it needs to be the province of federal authorities, not a smattering of courts.

Climate change has been caused by the lawful actions of billions of human beings, in hundreds of countries, over a time period that goes back to the Industrial Revolution, they said. Federal and even New York state law encourage fossil-fuel production, Boutrous, Chevron’s attorney, added.

New York City’s case, he said, amounts to holding three oil companies responsible “for the way civilization and humankind has developed over the ages,” he said.

Technically, New York City is suing the oil companies for their production and marketing of fossil fuels. But the defendants say the city’s alleged injury comes from carbon emissions, not the production of fossil fuels.

As the companies argued — and as New York City disputed — that means the federal Clean Air Act applies. If Keenan agrees, that would make it more of an “uphill battle” for New York City to justify trying its case in this forum, Burger said.