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Federal, State or Dismissal? Here’s the State of Play in the California Nuisance Lawsuits

A divergence in legal opinion emerged last week leaving more questions than answers in the California public nuisance lawsuits. Despite a decision in late February by Judge William Alsup to hear the San Francisco and Oakland cases in federal court, Judge Vince Chhabria of the same U.S. District Court for Northern California ruled that cases filed by San Mateo County, Marin County and the city of Imperial Beach would instead be sent back to state court. Lawsuits from Santa Cruz County and the cities of Santa Cruz and Richmond will also be heard before Judge Chhabria, and he has already indicated that he will rule on the jurisdiction of those cases—leaving many to believe that he will decide that these lawsuits also belong in state court.

While Judge Alsup was most concerned by the weight of the climate change debate—an issue that, as he put it, “demands the most comprehensive view available” in federal court—Judge Chhabria instead challenged the assumption that preceding cases truly established federal preemption. “Simply put,” Chhabria wrote, “[Judge Alsup’s] cases should not have been removed to federal court on the basis of federal common law that no longer exists.”

This most recent ruling is a disappointing outcome that is leading the involved parties down a path that Judge Alsup warned against. In his ruling on the San Francisco and Oakland cases, Alsup wrote, “A patchwork of 50 different answers to the same fundamental global issue would be unworkable.” By diverging from Alsup’s ruling, Chhabria is turning the eight nearly identical California cases into the start of that very patchwork. One bright spot in Judge Chhabria’s ruling is his acknowledgement that the cause of action underlying these lawsuits may, in fact, be federally preempted.

Today, we had Judge Alsup’s requested climate tutorial, and he will also consider the defendants’ recent request for dismissal in San Francisco. We will also likely witness appeals: the plaintiffs will likely appeal to the Ninth Circuit to have the San Francisco and Oakland cases remanded to state court, while the defendants will be expected to appeal Judge Chhabria’s decision.

If we follow that logic, the California climate cases may take a route similar to that of the paint manufacturers in the People of California v. ConAgra et. al. In what has become a 17-year battle over whether the manufacturers are liable for remediation of lead paint in residences in several California municipalities, the defendants will now seek a U.S. Supreme Court ruling, which in part would address the merits of public nuisance lawsuits like those in California cases. If the Supreme Court gets to the paint case first, there could be major implications on the fate of the climate lawsuits in California.

If anything in these lawsuits is clear, it is that the courts are not the best way to address the global challenge of climate change. The appropriate government response should come from the legislative and executive branches, not the courts.  The issue of climate change is a shared responsibility that can in no way be pinpointed to one product or a handful of companies. The concerns raised in these cases should not be addressed through baseless litigation that does nothing to advance solutions to this global problem.