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San Francisco Chronicle: Can San Francisco, Oakland win billions from the oil industry for climate change?

A handful of California cities and counties want billions of dollars from the oil industry for the problems arising from climate change, and their far-reaching legal push is about to face a crucial test in a Pasadena courtroom.

On Wednesday, the Ninth U.S. Circuit Court of Appeals is scheduled to hear arguments from three counties and five cities, including San Francisco and Oakland, on why their lawsuits against several oil companies should proceed in state court rather than federal court. The widely watched challenges are thought to have better odds in state court.

The eight California communities behind the suits are at the forefront of a small but growing effort nationwide to hold oil companies financially responsible for rising seas, wildfires and other climate-related havoc. The new legal tactic, now being employed by New York, Baltimore and other cities and counties, comes as global warming has become a low priority during the Trump administration.

The decision on which court should settle the suits will directly affect only the California municipalities. In addition to San Francisco and Oakland, they include Richmond, Santa Cruz and Imperial Beach (San Diego County), and Marin, San Mateo and Santa Cruz counties. However, the rulings in Pasadena also feed into a national debate over court jurisdiction on the matter, which legal experts say may ultimately prompt the Supreme Court to weigh in on the climate issue.

The full article can be read here.

CommonWealth Magazine: New York ruling is a warning to Healey

A New York judge last week soundly rejected a lawsuit by that state’s Attorney General that cuts the legs out from climate lawsuits by Massachusetts, Rhode Island, and other governments. The New York lawsuit, which sought up to $1.6 billion from ExxonMobil, was widely hailed as “the trial of the century” by those advocating legal action against energy manufacturers over climate change.   

Global climate change is one of the defining political issues of our time, and for good reason. There are urgent, widespread efforts to figure out how to mitigate the impacts of modern society on our planet. This includes sourcing and using traditional energy more efficiently, finding ways to capture or suppress the release of greenhouse gases, and developing sustainable renewable energy. 

Several years ago, some climate activists decided that the best way to try to steer this debate to their desired policies was to vilify energy manufacturers. Their goal, an internal email showed, was to get their friends in government to “delegitimize” the companies, their workers, and supporters as political actors. They met with then-New York Attorney General Eric Schneiderman, Massachusetts Attorney General Maura Healey, and several mayors around the country. 

What followed was a series of investigations and lawsuits seeking to reinforce this vilification—regardless of whether the allegations were true. Healey launched an investigation, saying ExxonMobil misled consumers about climate change.  Rhode Island filed a lawsuit against a bunch of oil and gas manufacturers, saying they should pay for climate-related local infrastructure projects for illegally “conceal[ing] the dangers” of climate change.  

The full article can be read here.

The San Diego Union – Tribune: Imperial Beach presses forward on climate lawsuit against fossil fuel companies

The state of New York may have suffered an emphatic defeat in a legal battle against ExxonMobil last week, but that has not deterred the city of Imperial Beach from pursuing its own lawsuit looking to force 18 energy companies in the oil and coal sectors to pay for damages associated with rising sea levels.

“We’re going full-speed ahead,” Imperial Beach Mayor Serge Dedina said Monday. “The reality is the fossil fuel industry has caused climate change and they need to pay for it.”

On Dec. 10, a New York Supreme Court Justice ruled the state’s attorney general “offered no testimony from any investor who claims to have been misled” by ExxonMobil in a lawsuit that claimed the oil giant deceived investors about the impacts of climate change.

Justice Barry Ostrager’s 55-page ruling not only rejected the state’s claim the company committed fraud but said there “was not a single ExxonMobil employee whose testimony the Court found to be anything other than truthful” while the testimony of the state’s expert witnesses was “eviscerated on cross-examination and by ExxonMobil’s expert witnesses.”

The case was dismissed “with prejudice,” which means it cannot be reintroduced in New York.

The full article can be read here.

Wall Street Journal: Should Fossil-Fuel Companies Bear Responsibility for the Damage Their Products Do to the Environment?

The oil-and-gas industry has faced a barrage of lawsuits in recent years from cities, counties and states across the U.S. seeking damages for the costs they say they have incurred as a result of climate change.

Some lawyers are going after big oil firms for securities fraud, saying they knew for decades that climate change posed a material risk to their businesses but failed to fully disclose the danger to investors. Other lawyers are arguing that extracting and selling oil and gas is a public nuisance because it leads to greenhouse-gas emissions, which in turn results in the harmful impacts of climate change.

No suit has been successful yet, and some have been thrown out in federal court. But a handful have been allowed to move forward.

Those who believe the oil-and-gas industry bears some financial responsibility for the damage caused by climate change say that in much the same way that tobacco firms hid the dangers of smoking from consumers, fossil-fuel companies foresaw the harm their products would cause yet did nothing to avert it or warn the public.

Opponents reject that comparison, saying fossil fuels, unlike tobacco, are essential and used by everyone. Reducing emissions isn’t a matter for the courts, they contend, but an issue of public policy.

Justin Gundlach, an attorney at the Institute for Policy Integrity at the New York University School of Law, argues that fossil-fuel companies should be held accountable for their damaging contributions to climate change.

Linda Kelly, senior vice president, general counsel and corporate secretary at the National Association of Manufacturers, makes the case against that.

The full article can be read here.

Colorado Sun: We need more elected officials who seek real climate solutions – not lawsuits

As the need to address climate change mounts, public officials are considering a wide range of responses.

Most elected official are focusing on a dual track: stepping up efforts to develop cleaner-burning energy sources and creating incentives for manufacturers to innovate new green technologies so that all of us can use fuel more efficiently. This is the right path.

A few officials, including right here in Colorado, have chosen a less productive path.

They are suing energy manufacturers for selling us the energy we use, saying that climate change is all their fault and they need to do something about it.

Last year the City of Boulder, Boulder County and San Miguel Counties filed one of these lawsuits. They signed up for litigation that is being shopped around the country by out-of-state trial lawyers seeking to make money off of this shared, global challenge. This is the wrong path.

Fortunately, there are many voices of reason emerging in this debate — people who are focused on seeking real solutions.  One of them is Colorado’s Attorney General Phil Weiser.

He opposes these lawsuits, saying he is “unconvinced” this litigation will be useful at all in the effort to deal with climate change. He continued that “the major reason that we have really reduced our carbon footprint here in Colorado is by moving from coal to natural gas,” so “it’s not an obvious move that we would hold liable oil and gas producers.”

Attorney General Weiser’s focus on solutions rather than blame makes sense. He is also right about the shift from coal to natural gas.

Nationally, the Energy Information Administration reported a 28% decrease in carbon emissions from power generation between 2005 and 2017. In fact, in 2016, greenhouse gas emissions were the lowest they had been since 1992.

Over the past few years, natural gas has also become the focal point for R&D into renewable and cleaner-burning fuel technology, including algae-based fuel, carbon capture and sequestration, and even solar or wind power generation.

We do not need to sacrifice economic growth and jobs to fight climate change. Just the opposite — we can develop our businesses around the fight against climate change.

The full article can be read here.

E&E News: Lawyer says ‘super-torts’ won’t fix climate change

Climate litigation is trending. From corporate deceit lawsuits to sweeping constitutional claims, plaintiffs around the world are raising critical climate change issues in the courts.

Climate nuisance lawsuits — a clash of established legal theory and new climate questions — have captured the attention of American activists, industry foes and court watchers alike as states and local governments sue oil and gas companies to help pay for damage they blame on unchecked emissions.

They are currently grappling with the oil industry over whether the cases should be heard in state or federal courts. Proponents say public nuisance law — common law that protects against wrongdoing that causes damage to the public — is ideal to address the damages knowingly exacerbated by fossil fuel companies that knew for years their emissions contributed to global warming.

But critics like attorney Phil Goldberg say that nuisance law offers no such justification for climate cases, adding that broad climate solutions are the responsibility of government, not the courts.

Goldberg is managing partner at Shook, Hardy & Bacon LLP in Washington, D.C., and serves as special counsel for climate change litigation for the Manufacturer’s Accountability Project, which advocates for industry interests in climate nuisance lawsuits. Goldberg has filed multiple “friend of the court” briefs on behalf of oil and gas companies in those cases, and his firm has also represented industries like Big Tobacco in other liability cases.

In a career spanning public liability issues, he has focused attention on the novel use of public nuisance and product liability law.

Public nuisance law is a time-honored counter to local disturbances that do public damage, but Goldberg insists it was never meant to accommodate lawsuits against companies and emissions with global effects.

He said that bringing climate lawsuits under tort law — law that is brought against a party who wrongs or damages another party — doesn’t work because the production and sale of oil and gas products aren’t illegal behavior.

“Think like protecting the town square and the right for people to use public roads,” Goldberg said of the law’s boundaries. “[Nuisance law] never had anything to do with any kind of product sales, promotion, or any kind of national or international issues.”

He sat down with E&E News this week to discuss climate nuisance litigation and what the government should do to change policy.

The full article can be read here.

Fox & Hounds: Climate Litigation Brings Divisiveness Instead of Unity to California

In the run-up to the 2020 election, voters have been tuning in to a series of debates, and town halls featuring the Democratic candidates, several of which were dedicated solely to global warming and climate change (GWCC). However, new polling found GWCC “barely registers as a priority issue.” Voters are more concerned about the economy, jobs and healthcare. California voters share those same concerns with added worries about the state’s homelessness crisis. In New York they are concerned about economic development and every day issues like road paving.

Then why have local officials in California, New York City, and elsewhere chosen to sue energy companies over climate change, an issue low on the list of voters’ priorities? No rational person disputes that climates are always changing.  Nor does any rational person dispute that we must also address the issue of climate change. The debate then becomes how we take on this global challenge. At the recent United Nations climate summit, 500 scientists sent a letter urging leaders to follow a climate policy based on “… realistic economics and genuine concern for those harmed by costly but unnecessary attempts at mitigation.” Litigation fails to meet these criteria. 

These lawsuits—and ones filed in Colorado, Maryland, Washington State, and Rhode Island—utilize the legal theory of “public nuisance.” Plaintiffs’ attorneys working on a contingency fee basis who stand to pocket millions should they find courtroom success in are driving this litigation.

The San Francisco, Oakland, and New York City cases were dismissed last year, but are currently under appeal in federal circuit court. Now conflicting legal rulings in five, state-level, district courts could bring muddied legal decisions. To date, courts are unsure where to adjudicate these weather-related claims; or whether voters, city councils, legislatures, Congress, and the U.S. executive branch should decide energy policies.

The full article can be read here.

Connecticut Post: CT’s business climate already suffering; frivolous climate lawsuits won’t help

It’s no secret that Connecticut has a ways to go to be more friendly place to do business. Our state has the second highest tax rate in the U.S. and had three of the slowest-growing urban job markets in the entire nation over the past five years. According to the Tax Foundation’s 2019 State Business Tax Climate Index, we rank No. 47 overall, coming up dead last in property taxes and scoring similarly poor on other measures. Cities like Hartford, New Haven and Bridgeport are growing slowly relative to other large and mid-size cities in the U.S.

The new isn’t all bad, of course. Connecticut’s unemployment has fallen to just 3.8 percent, despite anemic growth in jobs. And while this is cause for some optimism, it comes on the heels of Cigna, a major employer in the health insurance sector, threatening to leave the state just as others have in recent years.

With this in context in mind, one thing should be clear. Connecticut should do everything possible to avoid other negative impacts on the business climate. This includes frivolous litigation targeting manufacturers that could further drive companies from our state.

In recent years, local governments from coast to coast have joined with for-profit trial attorneys to label manufacturers as “public nuisances” when it comes to climate change, attempting to score big paydays by linking manufacturers to rising sea levels and other climate change symptoms. Landmark lawsuits in San Francisco and Oakland, as well as in New York City, have employed the strategy of using courts, as opposed to our elected officials, to litigate climate change. Of course, the real motive is money. City officials are trying to collect money for infrastructure and they are suing energy manufacturers by partnering with profit-motivated trial attorneys seeking a big payday for themselves.

Fortunately, this strategy of labeling manufacturers as “public nuisances” has repeatedly failed in the courts. In fact, three significant cases were dismissed in 2018 by federal judges. In the case of San Francisco and Oakland, Judge William Alsup of the U.S. District Court for the Northern District of California last June dismissed the climate lawsuits filed by these cities. Alsup wrote that climate change issues “demand the expertise of our government agencies, our diplomats, our Executive, and at least the Senate.” The place for such issues, he reasoned, was certainly not the courts.

The full article can be read here.

RealClear Markets: The Deeply Destructive Climate Change Litigation Game

Voters and their elected representatives can be stubbornly uncooperative with interest groups pursuing the achievement of specific policy ends. “Heavy lifting” is the only way to describe an effort to forge a Congressional coalition in support of specific legislation, and “herculean” is the proper adjective for a campaign to elect legislative majorities inclined to support it.

This is particularly the case in the context of climate policies intended to reduce emissions of greenhouse gases (GHG). Such legislative efforts have been rejected by voters and by Congress several times. So what is a pressure group convinced of the truth of its climate arguments, the urgent necessity of its own policy aims, and the nefarious nature of its opponents—“Big Oil”— to do?

For much of the policy community arguing the crucial imperative of “action” on greenhouse gas (GHG) emissions and the perfidy of the oil industry, this gordian knot can be cut only with litigation, that is, policymaking by the judiciary. A central example of an organization advocating such climate litigation at the municipal level and among state attorneys general calls itself Climate Communications and Law (CCL), about which more below. The behavior and motivations of such groups as CCL deserve far more scrutiny than reporters and other observers have offered.

The full article can be read here.

Florida Record: Report details funding of climate change litigation through well-heeled foundations, non-profits

Organizations and attorneys involved in legal action against companies over the impact of climate change are being supported and funded by a network of non-profit foundations, according to a new report.

Several legal actions, by municipalities, counties, and states, are ongoing against the fossil fuel industry that either argue they are liable for costs to mitigate against the impact of climate change, or, as in New York, it is claimed investors were misled because a company, ExxonMobil, knew decades ago of the potential damage, but did not reveal what it knew.

The Manufacturers’ Accountability Project, set up in 2018 by the National Association of Manufacturers to argue against, and combat, climate change litigation recently published a report on the funding of some of the legal actions.

“Far from a David-versus-Goliath endeavor, this effort is being waged by a coordinated network of individuals, nonprofit organizations and academics, and is backed by some of the most powerful private funders in the United States,” the report concludes.

The report notes that the Niskanen Center, which it is claimed is involved in a lawsuit in Boulder, Colorado, has “received at least $3.37 million from the William and Flora Hewlett Foundation, Rockefeller Brothers Foundation (RBF), and Energy Foundation since 2015.”

The full article can be read here.