Meritless Climate Change Cases, Driven by Plaintiffs’ Bar, Continue to Work Their Way through California Courts
Litigation is not a solution to address the broadest public policy challenges, and in the end, it is the lawyers who end up with a big payday while victims and communities in need of aid often are no nearer to resolution.
This op-ed was originally published by the Daily Journal.
By Lauren Sheets Jarrell
At a time when the nation is facing surging energy prices, personal injury lawyers are targeting the oil and gas industry with meritless lawsuits seeking to cash in by holding these businesses liable for the effects of global climate change. While this litigation has been filed across the country, California municipalities and their outside counsel have been at the forefront.
The onslaught of litigation began in 2017 with multiple municipalities filing suits in state courts against several energy companies claiming “extraction, refining, and/or formulation of fossil fuel products . . . is a substantial factor in causing the increase in global mean temperature and consequent increase in global mean sea surface height.” See Appellants’ Opening Brief at 6, Cnty. of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022) (No. 18-15499).
A recent report released by the American Tort Reform Foundation examines how these lawsuits have sought to blame climate change on energy producers—regardless of wrongdoing, fault, or causation—and demand that they pay for local infrastructure projects to address the effects of climate change. Lauren Sheets Jarrell, Attorneys General for Hire: A Disturbing Usurpation of Traditional State Police Powers by Private Political Activists, Am. Tort Reform Found. (June 15, 2022), https://www.atra.org/white_paper/attorneys-general-for-hire-a-disturbing-usurpation-of-traditional-state-police-powers-by-private-political-activists/.
Among the legal claims behind these cases, the plaintiffs allege that the oil and gas industry is liable for creating a public nuisance. Historically, public nuisance law involved instances in which a property owner’s activities unreasonably interfered with a right that is common to the public, usually affecting land use. Typical cases include blocking a public road or waterway or permitting illicit drug dealing on one’s property.
Now, plaintiffs’ lawyers, on behalf of local governments and municipalities, are seeking to dramatically expand this legal theory to address broad public policy issues. In addition to climate change, similar litigation has been filed in the context of vaping, opioids and the disposal of plastic waste.
Our civil justice system, which includes lawsuits brought by local and state governments, exists to resolve disputes – not to perform the functions of legislators and regulators. Broader public policy challenges should be addressed by those entrusted with those responsibilities. They are obliged to serve and protect the public, and they are accountable to us all. By contrast, plaintiffs’ lawyers operating on a contingency fee basis are driven by a profit motive.
The County of San Mateo v. Chevron Corp. and The City of Oakland v. BP P.L.C. are the leading cases working their way through the California courts. Sher Edling, the plaintiffs’ firm spearheading climate change litigation across the country, is representing the municipalities. While much of the litigation to date has focused on whether the cases belong in state or federal court, the expansion of public nuisance law has been at the forefront of the arguments.
Both cases were originally filed in California state courts and the defendants attempted to remove them to federal court. San Mateo was immediately sent back to state court; however, in February 2018, Senior U.S. District Judge William Alsup for the U.S. District Court for the Northern District of California denied The City of Oakland plaintiffs’ motion to remand the case back to state court. California v. BP P.L.C., No. C 17-06011 WHA, 2018 WL 1064293 (N.D. Cal. Feb. 27., 2018). In his order, Judge Alsup described climate change as a “worldwide predicament” which “demands the most comprehensive view available…” Id. at 5. “If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints.” Id.
Judge Alsup also reflected on the significant burdens that would arise should each state be allowed to regulate the oil and gas industry through litigation. “A patchwork of fifty different answers to the same fundamental global issue would be unworkable.” California, 2018 WL 1064293, at 5.
The United States government laid out a similar concern in its amicus brief. It highlighted the essential nature of fossil fuels and argued that the issues with applying California state law to out-of-state sources “are magnified here, where the sources of emissions alleged to have contributed to climate change span the globe.” Amicus Curiae Br. for the United States, No. 17-cv-06011 (N.D. Cal.), ECF No. 245 at 11.
The limited role of the judiciary is to solve disputes between parties before the court, not develop national policy. As Judge Alsup stated, “Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?” City of Oakland v. BP P.L.C., 325 F. Supp.3d 1017, 1023 (N.D. Cal. 2018).
Unfortunately, the Ninth Circuit had an opportunity to uphold this position and push back on activist attorneys’ attempts to improperly expand the law but failed to do so. In a pair of opinions released in May 2020, the 9thCircuit held that the energy companies did not satisfy the necessary requirements for removal and remanded the cases back to state court allowing the public nuisance claims to proceed. See County of San Mateo v. Chevron Corp., — F. 3d —-, 2020 WL 2703701 at *1 (9th Cir. 2020); City of Oakland v. BP p.l.c., – F.3d –, 2020 WL 2702680, (9th Cir. 2020).
In 2021, the U.S. Supreme Court declined to hear City of Oakland anddefendants in County of San Mateo have filed a petition for rehearing en banc of the 9th Circuit’s decision. Defendants argue that it is in direct conflict with an earlier 2nd Circuit decision which found it was inappropriate to use state laws and the courts to address costs attributed to greenhouse gases. Solutions to global warming, the court found, must be developed through federal legislation and foreign policy, not local lawsuits. City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021).
The inappropriate expansion of public nuisance law and degradation of long held legal tenets is an abuse of the nation’s court system. Litigation is not a solution to address the broadest public policy challenges, and in the end, it is the lawyers who end up with a big payday while victims and communities in need of aid often are no nearer to resolution. It is the responsibility of legislators and elected officials to protect the public interest, not lawyers.