Washington, D.C.—Phil Goldberg, Special Counsel to the Manufacturers’ Accountability Project, attended the oral argument in the City of Oakland v. BP P.L.C. and the cases of several California cities that have been consolidated on the issue of whether they should be remanded to state court. The hearing was held yesterday at the U.S. Court of Appeals for the Ninth Circuit in Pasadena, California.

Much of the focus was on procedural issues, including the scope of the Ninth Circuit’s review, whether the claims should be remanded to state court or back to federal District Court, and whether the communities even have jurisdiction to sue many of the companies in the litigation. The Court also heard substantive arguments in response to Judge Alsup’s ruling to dismiss the Oakland and San Francisco cases.

After the hearing concluded, Goldberg issued the following observations:

The judges in the Ninth Circuit heard compelling arguments as to why climate change is not a liability matter for state or federal court. Counsel for the companies, as well as counsel of the United States Government, explained that figuring out how to source and use energy more efficiently to mitigate our impact on the climate is a public policy matter for Congress and the Federal Agencies, not the courts. The Government’s lawyer pointed out several times that this has been the consistent view of the federal government under presidents from both political parties. Just last month, the Ninth Circuit itself made these very same points when ruling to dismiss the Juliana public trust climate change case against the federal government.

The role of the courts versus that of the legislative and regulatory bodies in setting climate change policies has been a repeated theme as to why climate change is not a liability issue. In June 2018, Judge William Alsup explained the limited role of the judiciary in the ruling being appealed today: “The problem [of global warming] deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.” He echoed the points made by the U.S. Supreme Court in American Electric Power v. Connecticut, which was part of the last round of climate change tort cases, stating that when it comes to setting climate change policy, Congress and EPA are “better equipped to do the job than individual district judges issuing ad hoc, case-by-case” decisions.

Counsel for the California cities, though, argued that state judges should be empowered to subject energy manufacturers to liability for climate change, even if it leads to a worldwide penalty on the manufacturing and sale of oil and gas. Vic Sher, who represents the California cities in the litigation, made several statements that may ultimately undermine his legal case.  First, he said this case is about the companies’ “failure to disclose a defective product.” Allegations over a product manufacturer’s failure to warn consumers and selling a defectively designed product are both governed by California’s product liability law. So, in essence, he just explained why the tort of public nuisance, which is the key legal theory in these cases, does not govern his allegations—under federal or state law.

Second, Sher suggested that oil and gas companies can be blamed for climate change because, going back 50 years, only they and not the government knew of the potential impact fossil fuels can have on the climate. That simply is just not true—even according to his clients’ own pleadings, which detail the government’s knowledge about climate change back to the 1960s. Also, in the Juliana case the Ninth Circuit found that the federal government has been aware of the relevant climate science theories since at least President Johnson’s Administration in 1965.

In an awkward moment, one of the judges even asked Sher to clarify this statement, asking “Are you suggesting the government didn’t know that fossil fuels can cause climate change?” And, he doubled down, responding, “There’s no evidence that the government did.” Defense counsel Ted Boutrous of Gibson Dunn, who spoke next, read from the Juliana ruling that explicitly proves Sher wrong.

The bottom line, as MAP has repeatedly explained, is that if the politicians here really want to do something about climate change they should partner with manufacturers and others on the innovations that can make a real difference in their communities. Scapegoating energy manufacturers, as we heard them do today, will do nothing for the climate and only wastes time and valuable resources.