A California Court Might Have Just Opened The Floodgates For Climate Litigation
Brian H. Potts , CONTRIBUTOR
On Tuesday, a federal district court in California issued a decision that could open the floodgates for climate-change litigation in federal courts around the country.
The United States District Court for the Northern District of California issued a procedural decision in California v. BP, LLC, a lawsuit brought by Oakland, San Francisco and various others against BP, Chevron, ConocoPhillips, Exxon and Royal Dutch Shell for selling fossil-fuel products that they allege cause global warming. The plaintiffs’ complaint asserts nuisance claims against the defendants under common law, seeking an abatement fund to help pay for sea walls and other climate-related defense infrastructure.
Back in 2011, however, the U.S. Supreme Court in its landmark American Electric Power v. Connecticut decision rejected similar nuisance claims brought against companies for burning fossil fuels. The high court found that these lawsuits based on federal common law were improperly in federal court because greenhouse gas emissions were already regulated by an existing federal law: the Clean Air Act.
But now, the California federal district court has said that the Supreme Court’s decision may not apply to all federal climate nuisance cases, and that some of them are still properly in federal court. In an about-face, the California court’s decision on Tuesday argues that the U.S. Supreme Court’s AEP ruling does not apply to all federal climate-change nuisance cases. The pending cases against these oil companies are still properly in federal court, according to U.S. District Judge William Alsup, because the Clean Air Act only regulates the companies that burn fossil-fuels, not the companies that sell them (like the defendants).
As the court noted, “plaintiffs here have fixated on an earlier moment in the train of industry, the earlier moment of production and sale of fossil fuels, not their combustion.” In other words, although this was a procedural decision as to where the claims should be brought, the court has tipped its hand and indicated that it believes these types of nuisance claims are not preempted by the Clean Air Act.
This could be a huge deal for environmental groups and green plaintiffs.
As a result of this decision, coal, oil, and natural gas producers could face federal common law nuisance claims all over the country. The size and scale of these suits could mirror the tobacco litigation that began in the 1990s.
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