In back-to-back hearings before the Ninth Circuit Court of Appeals Wednesday, lawyers representing California cities and counties suing fossil fuel companies over localized climate impacts argued their cases are based on the companies’ alleged campaigns of deception around climate science that downplayed the danger of their products.
Opposing arguments by an attorney representing Chevron as well as a Department of Justice lawyer failed to defend against this core allegation, and instead claimed that global warming broadly is an issue of federal concern that requires federal rather than state court jurisdiction.
Federal or State Courts?
The California lawsuits, first filed in 2017, seek to hold major fossil fuel companies liable for costs associated with climate impacts like coastal flooding and sea level rise. The cases have not been to trial and are currently in a jurisdictional battle over whether they belong in state or federal courts.
One set of suits, including those brought by the cities of Richmond, Santa Cruz, and Imperial Beach as well as the counties of Marin, Santa Cruz, and San Mateo, had been remanded or ordered back to state court. Fossil fuel defendants are appealing that ruling. Another set of lawsuits brought by Oakland and San Francisco had been dismissed after a federal judge declined to remand to state court. The cities are appealing both of those decisions.
It’s not just #BigOil‘s production of fossil fuels that torched our planet, it’s their large scale, sophisticated campaign to lie about the science and block alternatives to their deadly product. Just like the lead paint producers held liable by CA appellate court in 2017. 2/3
— KassieSiegel (@KassieSiegel) February 5, 2020
The California communities, along with other government plaintiffs suing the companies including Baltimore and Rhode Island, say the claims are about wrongful promotion of a dangerous product and the companies’ deceptive behavior, which are traditionally state tort law claims that state courts should handle.
The companies, however, argue that the claims are really about fossil fuel production and the resulting emissions, which they say implicates federal interests and requires federal court jurisdiction. They have had success getting similar climate cases dismissed in federal court.
Federal Government Supporting Fossil Fuel Companies
Although the federal government is not a party in this litigation, the Department of Justice (DOJ) is supporting the fossil fuel companies. As InsideClimate News recently reported, the DOJ has been in close contact with attorneys for the companies, raising questions as to whether DOJ is representing fossil fuel interests rather than the public interest. On Wednesday, a DOJ attorney appeared in court to argue in support of the companies during the hearing on the San Francisco and Oakland appeal.
DOJ’s Jonathan Brightbill said federal government has an interest in ensuring that the political branches, not the courts, set policies concerning climate change. He referenced the Ninth Circuit Court’s recent dismissal of the Juliana v. United States youth climate case, quoting Judge Andrew Hurwitz saying, “some questions, even those existential in nature, are the province of the political branches.”
Theodore Boutrous, lawyer for Chevron, also argued in a letter sent to the court ahead of the hearings that the Juliana dismissal favors the fossil fuel companies’ arguments for federal jurisdiction.
In addition to contending that only the political branches of government can address the issue of climate change, the companies argue that these cases concern federally authorized production of oil and gas.
‘Wrongful Promotion and Marketing and Deceit’
But while Boutrous argued that the cases are all about production, attorneys for the California communities said they are actually about wrongful promotion and decades of deceit.
“I have to take a moment at the start to push back on this mischaracterization of what this case is about,” attorney Vic Sher said. “The case does not go back to the dawn of time. It does not attack oil and gas production anywhere, at any moment in any amount. It is based on a 50-year campaign of deception and denial that’s limited temporally, and legally it’s based on the wrongful promotion and marketing and deceit that led to the profligate and uncontrolled use of these materials to the world’s detriment.”
Attorney Michael Rubin, arguing on behalf of San Francisco and Oakland, offered a similar description of the claims.
“They allege that these private companies engaged in a large-scale sophisticated advertising and communications campaign to promote the use of their products at massive levels the defendants claimed were safe and environmentally responsible,” he said, “although defendants have known since the early ‘70s threatens severe and even catastrophic harms to coastal cities like San Francisco and Oakland. They embark on this campaign by undermining or discrediting the scientific evidence, withholding information they had about global warming, basically trying to persuade the community to use their fossil fuels.”
Rubin added, “At the same time that defendants were engaged in this wrongful promotional campaign, was the greatest period of fossil fuel use in the history of the world.”
Big Oil’s lawyer is trying desperately to move the conversation away from the industry’s decades of deception. I wonder why…
Industry doc leaked in 1991 revealed aim to “reposition global warming as theory (not fact)” #ExxonKnew #MakeThemPay pic.twitter.com/gUebLmvuhW— Ortal Ullman (@UCSOrtal) February 5, 2020
Boutrous did not defend against these allegations, even when pressed by the judges.
“But a very important part of the claim as I understand it is there were active efforts to undermine the science. What about that?” Judge Morgan Christen asked.
“Part of what they’re arguing is punitive damages, they have other theories,” Boutrous responded. “But they’re claiming that the companies knew, and there’s big First Amendment questions there as well, but the government promotes oil and gas production…”
Judge Christen then interjected, “But I’m not sure how this goes to my point…It seems to me the way you’re describing the essence, getting back to Judge Ikuta’s question, is that this is about production. And it seems to me the complaint is about this alleged campaign…and I’m not sure you’re really speaking to this part of the campaign to undermine the science.”
Boutrous again deflected, refusing to directly respond to the allegation that companies like Exxon and Chevron actively worked to discredit climate science.
In a statement following the hearings, the counties of Marin, San Mateo, and Santa Cruz and the cities of Imperial Beach, Santa Cruz, and Richmond said they are intent on holding these companies liable for their climate deception.
“It has been two years or more since our communities first filed these cases to hold fossil fuel companies accountable for the climate change-related damages they knowingly caused and the high costs our taxpayers are already incurring as a result,” the communities said. “It is time for the defendants to be held accountable for their decades-long campaign of public deception about climate change and its consequences.”
Main image: Increased sea level and storm surge impact roads and trails at Golden Gate National Recreation Area. Credit: National Park Service, public domain
