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Four Things to Consider Ahead of the San Francisco and Oakland Oral Arguments

This Thursday, Judge William Alsup of the U.S. District Court for the Northern District of California will hear oral arguments in lawsuits brought against energy manufacturers by the cities of San Francisco and Oakland. The two California municipalities filed claims against several of the country’s largest energy producers back in September, alleging the companies knew about the impacts of climate change long before they disclosed the information to the public and should be forced to pay for sea wall construction and other infrastructure reinforcement measures.

While this round of arguments may be largely procedural, the issue being argued in Thursday’s proceedings in The People of the State of California v. BP P.L.C. et al—whether the cases may be heard in federal or state court—will have important implications.

Here are four things to keep in mind ahead of Thursday’s oral arguments:

1. The cities want the case heard in California’s state courts. 

The cities will be given the opportunity this week to argue their motion for remand from federal to state court. The California state courts are more likely to be sympathetic to the cities’ position, and these municipalities want to press their advantage.

2. More could be on the line than just jurisdiction. 

In deciding where these cases should proceed, Judge Alsup may be considering more than jurisdiction; he will be weighing in on whether climate change is inherently a local or national (or even international) issue. While they are arguing for the case to be heard in California court, the cities present climate change as an overarching challenge impacting every part of the world in their lawsuits.

Working against the cities in this regard are the still unresolved discrepancies in climate disclosures between their lawsuits and their municipal bond offerings, which may weigh heavily in the judge’s ultimate decision. These cities may be asked to address the inconsistency; have they misled their investors, or have they misled the court? Both answers carry serious risks.

3. Matt Pawa’s reputation and payday are on the line. 

Plaintiffs’ attorney Matt Pawa is representing both San Francisco and Oakland in their respective cases, so depending on where the cases are eventually heard, there is a lot to prove for the Hagens Berman attorney. Pawa has been trying this stunt for years with little success.

He represented a small Alaskan village in the case that is perhaps the most similar to San Francisco and Oakland’s: Kivalina v. ExxonMobil. The case was Pawa’s first real attempt to use public nuisance law in the context of climate change—an attempt that was eventually dismissed. He’ll be working against the precedent of his own failure in this round.

Legal Newsline reported Wednesday morning that they had obtained Pawa’s contingency fee agreement with the City of Oakland via a public records request. If Oakland’s lawsuit succeeds, Pawa will receive 23.5 percent of the damages and other fees awarded to the city. Pawa likely has a similar arrangement with San Francisco. Both of these cities are seeking billions of dollars from energy manufacturers, so there is more than just pride on the line for Pawa.

4. If the cases remain in federal court, there is no precedent for a successful outcome.

Matt Pawa is not only taking on a case that has been argued before, he is taking on a case he has personally argued and lost. Of course, Pawa isn’t alone in having tried a baseless climate lawsuit. In both Comer v. Murphy Oil and American Electric Power v. Connecticut, plaintiffs attempted to blame manufacturers, but the judges rejected that idea. They ruled that addressing these damages came down to the regulation of greenhouse gases, which they found to be an issue best handled through legislative channels and not in the court room. These cases, along with Kivalina, affirmed the political nature behind these attacks on manufacturers in America.

The US legal system has already rejected efforts to address climate issues through the courts, and sufficient precedent has been set for these climate cases to be dismissed. While no one knows how Judge Alsup will rule on Thursday, if case law and precedent are a good barometer, those behind these lawsuits may soon face the reality that their latest effort at a payday will end in a similar place.