by Lesley Clark

A federal appeals court delivered a victory yesterday to several California cities and counties that are suing the oil and gas industry for the costs of climate change, with a ruling that the case should be heard in state court.

In a unanimous ruling, the 9th U.S. Circuit Court of Appeals rejected arguments from the industry to move the climate lawsuit — led by California’s San Mateo County — to federal court.

“Even if the complaints raise federal policy issues that are national and international in scope, implicate foreign affairs and negotiations with other nations, and require uniform standards, they do not ‘raise a substantial question of federal law for the purpose of determining whether there is jurisdiction,’” Judge Sandra Ikuta wrote for the court.

The ruling is the third win for local governments, following a Supreme Court decision last May that sent a host of climate liability cases back to the appellate level. Federal appeals courts in Baltimore earlier this month and in Colorado in February sided with the challengers, agreeing to keep the lawsuits before the state bench (Climatewire, April 8).

Ikuta, who was appointed by former President George W. Bush, and the two other judges rejected each of the arguments that the oil and gas companies have raised in a bid to move a flurry of similar cases to federal courts, where the companies believe they face better odds.

That included a pitch that the cases belong in federal court because some oil extraction occurs in “federal enclaves.”

The local governments, Ikuta wrote, are not saying that their claims are based on wrongful acts that took place on federal property.

“Rather,” she wrote, “their complaint raises state-law claims arising from injuries to real property and infrastructure within their local jurisdictions.”

For example, she wrote that San Mateo’s alleged injuries stem from a trespass claim —that the companies’ petroleum activities “ultimately led to a sea-level rise that caused water to enter San Mateo property in violation of trespass law and caused various damages and nuisances there, including the destruction of real property and infrastructure within its borders.”

Chevron Corp., the lead defendant in the case, said it “respectfully disagrees” with the decision.

“Plaintiffs’ claims are based on allegations about worldwide carbon emissions and address global climate change — national and international issues that can be governed only by federal, not state, law,” Chevron spokesperson Braden Reddall said in a statement. “Although the court has decided that plaintiffs’ claims for now can proceed past this preliminary stage, Chevron looks forward to additional challenges that should put an early end to this meritless lawsuit.”

The judges also turned down the companies’ attempt to claim federal jurisdiction by citing the Outer Continental Shelf Lands Act, saying it’s unrelated to the alleged damages.

“The counties’ claims focus on the defective nature of the energy companies’ fossil fuel products, the energy companies’ knowledge and awareness of the harmful effects of those products, and their ‘concerted campaign’ to prevent the public from recognizing those dangers,” the opinion says. “These allegations do not refer to actions taken on the Outer Continental Shelf.”

Ikuta was joined in the opinion by Judges Morgan Christen, an Obama appointee, and Kenneth Lee, a Trump appointee.

The lawsuit is a consolidation of cases brought nearly five years ago by San Mateo, Marin and Santa Cruz counties, as well as the cities of Imperial Beach, Richmond and Santa Cruz (Climatewire, July 18, 2017).

The California cases are among an array of lawsuits filed by mostly Democratic-led states, cities and counties that are suing the industry, accusing it of misleading consumers about the dangers of burning fossils.

Advocates for the climate litigation welcomed the ruling.

“This is another big, but not surprising, loss for the oil and gas majors,” said Richard Wiles, president of the Center for Climate Integrity. “Three federal appeals courts have now agreed that their arguments to escape accountability in state court do not pass muster.”

He called it a “major victory” for California communities “seeking their day in court against corporate polluters that spent decades lying about their products’ role in fueling the climate crisis.”

But Phil Goldberg, special counsel to the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the litigation, noted that the judges wrote that the case raises what is “no doubt an important policy question.”

That shows, he said, that there is “no escaping that the nature of climate change, this litigation and the remedies being sought are all inherently beyond the scope of any state court.”

Goldberg said he expected the climate liability cases to eventually end up at the Supreme Court.

“It makes no sense to spend years litigating climate cases in state courts when it is clear that climate change is global in nature, has many causes and requires broad-based policy solutions,” he said.

Read the full article here.