Trump attorneys side with oil companies in climate lawsuits

Source: Anne C. Mulkern, E&E News reporter • Posted: Tuesday, May 15, 2018

The Trump administration wants a federal court to throw out two California cities’ lawsuits that seek to make oil companies pay for climate change damages.

The Justice Department on Thursday filed an amicus, or friend-of-the-court, brief in the cases filed by San Francisco and Oakland against the five biggest oil companies: Chevron Corp., BP PLC, ConocoPhillips, Exxon Mobil Corp. and Royal Dutch Shell PLC.

The cities’ complaints before Judge William Alsup in the U.S. District Court for the Northern District of California argue that the companies make and sell products that when combusted create a public nuisance, contributing to sea-level rise and other damages. They say the oil companies knew about climate effects decades ago and hid that information to protect their assets.

But the Trump administration contends that the cities’ claims raise questions that should be answered by the executive branch, not the courts.

The case “has the potential to interfere with the United States’ ongoing attempts to address the impacts of climate change, both domestically and internationally,” the DOJ filing said. “Domestically, the United States has the principal responsibility for implementing and enforcing the Clean Air Act … which provides the Executive Branch with authority to respond to climate-change effects by regulating greenhouse gas emissions.”

EPA has the primary responsibility for administering programs under the law, it said, including those that affect greenhouse gas emissions.

Internationally, DOJ said, “the United States is a party to the Paris Agreement on climate change but is also in the process of withdrawing from that agreement — issues that raise important and complex questions of diplomacy and foreign affairs.”

“By suggesting a judicial remedy for climate change … this case has the potential to lead the judiciary to improperly disrupt and interfere with the proper roles, responsibilities, and ongoing work of the Executive Branch and Congress in this area,” the filing said.

The complaints from San Francisco and Oakland are the first to move forward among a growing group of lawsuits pitting cities and counties against oil companies on the climate issue. A hearing is scheduled for May 24 in Alsup’s court on the oil companies’ motions to dismiss the cases.

Also in California, Imperial Beach, San Mateo, Marin County, Richmond, Santa Cruz and Santa Cruz County have sued two dozen or more fossil fuel companies and trade associations in separate cases. A 9th U.S. Circuit Court of Appeals decision is pending on whether to uphold U.S. District Court for the Northern District of California Judge Vince Chhabria’s order sending those suits back to state court from federal court.

Boulder, Boulder County and San Miguel County in Colorado have sued Suncor Energy Inc. and Exxon Mobil, demanding “past and future damages” for climate impacts. King County, Wash., last week sued the same five companies named in the San Francisco and Oakland suits (Greenwire, May 10). The county has the same law firm as those cities, Seattle-based law firm Hagens Berman Sobol Shapiro LLP.

The DOJ filing additionally raised the issue of prior court cases decided against those seeking action on climate issues. In American Electric Power Co. v. Connecticut, states sought to cap utility greenhouse gas emissions. The Supreme Court ruled that corporations cannot be sued for greenhouse gas emissions because EPA regulates those through the Clean Air Act.

“The Cities ask this Court to fashion a new judicial remedy to address the claimed nuisance of sea-level rise caused by emissions from the combustion of fossil-fuel products produced and sold by Defendants,” the DOJ filing said.

“The Cities’ approach is novel, but their goal is not: by suing defendants that sell fossil fuels, rather than defendants that use them for combustion to create energy, the Cities hope to avoid the fate of the plaintiffs in AEP, while seeking the same goal through the same theory,” it added.

‘Novel but not crazy’

Legal experts said DOJ filings are taken seriously by judges.

“The government is no ordinary private litigant; its views and advocacy often carry weight with the federal courts beyond that of privately-retained or corporate counsel,” said Rick Frank, director of the California Environmental Law & Policy Center at the University of California, Davis.

DOJ appears on “solid ground,” Frank said in an email, in its argument that the cities’ federal law nuisance claims are displaced by the Supreme Court’s finding in the AEP case. He noted, however, that the cities “carefully framed their case as one based on state common law nuisance principles.”

The San Francisco and Oakland cases started in state court. The oil companies filed to moved them to federal court, which happened automatically. Alsup ruled that they belonged in the federal venue.

Alsup “has attempted to recast it as one raising federal common law principles,” Frank said.

“My quick review of the government’s amicus brief indicates that it doesn’t speak to plaintiffs’ originally-filed state common law nuisance claims.”

The Supreme Court did not resolve the issue of state nuisance claims in the AEP decision.

Ann Carlson, co-director of the Emmett Institute on Climate Change and the Environment, in an email noted that Alsup early on in his decision keeping the cases in federal court “indicated that he doesn’t believe the lawsuit against oil extractors is displaced by federal law.”

“I’m not sure DOJ’s presence in the case will have much influence on his decision,” Carlson said. “Indeed DOJ’s presence could even help the plaintiff cities in the case.”

Cara Horowitz, the other co-executive director of the Emmett Institute at UCLA’s School of Law, noted that Alsup asked for DOJ’s opinion on the viability of claims against fossil fuel companies for climate change harms.

“These claims are novel but not crazy, and Judge Alsup has a reputation for wading through complexity,” Horowitz said. “I’m not sure how much DOJ throwing sand into the gears will matter here.”

Has Trump ‘abandoned the field’?

Carlson and Frank said the Trump administration’s actions on climate policy could factor in.

“It is a tough position for the U.S. to take that federal common law is displaced because of federal action under the Clean Air Act and internationally at the same time that the administration has announced it will withdraw from the Paris Agreement and repeal the Clean Power Plan,” Carlson said.

Frank said that the Trump administration “is retreating as quickly as it possibly can from the fields of climate change policy and greenhouse gas regulation.”

He added, “So it seems to me pretty hard for the government to argue that courts don’t have a role to play here when the Executive Branch — and Congress — have largely abandoned the field.”

Chevron highlighted parts of DOJ’s filing in an email to reporters.

The oil company noted that DOJ said that under the cities’ theory that the combustion of fossil fuels causes a nuisance, “innumerable foreign, federal, state, and local governments — including the Cities themselves — have contributed to the alleged harms. So has anyone who has ever driven a car.” Chevron has made a similar claim in its filings in the case.

John Coté, communications director for San Francisco City Attorney Dennis Herrera, on the DOJ filing said that “it’s hardly a surprise that Donald Trump’s Justice Department is cozying up to Big Oil.”

“But this is a legal matter, not a political one,” Coté said in an email. “These fossil fuel companies knew for decades that their products were causing global warming and they worked tirelessly to mislead the public about it. Now that they’ve been caught, they’re trying to stick cities like San Francisco with the bill. No thanks … It’s time for them to pay their fair share.”