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What the Hearing in Minnesota Revealed About Climate Tort Cases

Last week, the U.S. Court of Appeals for the Eighth Circuit heard oral arguments in Minnesota’s climate lawsuit against energy manufacturers. As several reporters noted, the three judge panel seemed unconvinced by Minnesota’s assertion that its case belongs in state court rather than federal court.

Judge Jonathan Kobes observed that the lawsuit “necessarily crosses that boundary because it relies on interstate and, in fact, global emissions.”

Indeed, if this is an emissions case—if a finding for liability in the case would impact the regulation of greenhouse gas emissions—it would clearly be a federal issue and should then follow the precedent set by the U.S. Supreme Court’s ruling in AEP v. Connecticut.

The plaintiffs have tried arguing that the cases are not about fossil fuel emissions, but in the next breath assert the cases are about how defendants’ conduct had the impact of “exacerbating emissions.”

That contradiction was readily apparent during the Eighth Circuit argument. Judge Kobes asked whether Minnesota’s case is actually about harms caused by interstate emissions. MN’s attorney offered this euphemism, saying emissions “are part of the avenue of delivery of the injury.” As defense counsel rightly pointed out, “avenue of delivery of the injury” is just a long way of saying caused by.

Further, Judge David R. Stras noted, Minnesota’s complaint “mentions the words ‘greenhouse gas,’ ‘air pollution,’ ‘emissions,’ and ‘climate change’ more than 300 times” – suggesting it is clear what the complaint is about. By contrast, plaintiffs say the case is about alleged deception, and Stras said, “from what I can tell, there’s only a single alleged misstatement” from one defendant to support that claim.

“So, I don’t quite know how you can say that this is not about interstate pollution,” Judge Stras concluded, adding, “It seems like the entire case is about federal law.”

MAP Statement on the Eighth Circuit Court Oral Arguments in Minnesota’s Lawsuit

Washington, D.C. — Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, issued the following statement ahead of the Eighth Circuit Court of Appeals oral arguments in Minnesota’s climate lawsuit:

“Minnesota’s claims may be packaged under state law, but their goals, the nature of the litigation, and the remedies they seek are all inherently national.  Federal judges have long understood that climate policy is federal and regulatory in nature. That’s why they have repeatedly rejected this type of litigation and why the litigation campaign’s architects are now trying to avoid the federal courts. Ultimately, their goals are clear: they want to use these lawsuits to raise energy prices even more on Americans—a cynical tactic that comes at a time when our energy security is threatened by global events and when Americans are already facing rapidly rising prices. If those pushing these types of lawsuits cared about solving climate change, they would work with manufacturers to continue developing technologies that allow us to use energy more efficiently, protect our environment and ensure our energy security.”

R Street Institute Hosts Expert Panel on Municipal Climate Litigation

Josiah Neeley, a Senior Fellow with R Street, hosted the Manufacturers’ Accountability Project’s Phil Goldberg, Niskanen Center’s David Bookbinder, and American Action Forum’s Ewelina Czapla, to debate the practicality of municipal climate litigation. In recent years, lawsuits have become the primary tactic of municipalities seeking damages from domestic energy producers. These municipalities contend that energy companies should have to pay for local infrastructure projects needed to mitigate the impacts of climate change because their products, namely oil and gas, contribute to climate change. But as MAP has made clear and many judges have ruled, selling energy is not a liability-inducing event, and determining how to address climate change and pay for its local impacts are public policy issues that need to be resolved in Congress and the regulatory agencies. Collaboration, not litigation, is the effective approach.

Click below to watch the full program.

Goldberg Tells Panel: Climate Cases Are An “Improper Use of the Courts”

Last month, MAP’s Special Counsel Phil Goldberg participated in a Law & Economic Center conference focused on public nuisance law and the novel ways trial lawyers are using tort theory to sue manufacturers for a variety of social, economic and environmental issues. It included speakers from all sides of the litigation.

Goldberg participated in the panel titled, “Public Nuisance—Climate Change Applications.” He was joined by Matt Pawa of Seeger Weiss, an original architect of climate litigation against the energy sector; defense attorney Mark DeLaquil with Baker Hostetler; Professor J.B. Ruhl of Vanderbilt University Law School; and Professor Jonathan Adler from Case Western Reserve University School of Law. Justice Anne K. McKeig of the Supreme Court of Minnesota moderated the panel. The audience included about 150 federal and state judges, Attorneys General and staff.

Pawa kicked off the discussion, making the case for why he believes public nuisance provides a viable way to sue energy manufacturers for “causing” global climate change. Goldberg followed, agreeing that climate change is a serious problem that needs to be addressed, both globally and locally, but explained that this litigation will not solve climate change. Rather, these cases have no legal foundation in public nuisance or any other legal theory—as courts have already found—and are an unproductive distraction from getting meaningful things done, Goldberg added.

Goldberg discussed why this litigation, which tries to impose national public policies on climate outside of the legislative process, is not a proper use of the courts. He also explained why the legal theories asserted in these cases simply do not give rise to liability here:

“The plaintiffs’ lawyers chose public nuisance and consumer protection acts for this expansive litigation because these causes of action have vague terminology—intentionally—so they can be applied to a wide variety of scenarios, but only in specific types of situations. Public nuisance applies to all sorts of local disturbances, and consumer protection acts make sure someone gets what they paid for, regardless of the product. Addressing global climate change has nothing to do with either situation. But, the plaintiffs want to apply the vague terminology of these liability theories anyway. As courts have found, there simply is no legal support for that.”

DeLaquil followed Goldberg and told the audience that courts are not buying these legal theories and explained why. In particular, he discussed the U.S. Court of Appeals of the Second Circuit’s recent decision that dismissed New York City’s initial climate case this past spring. In its ruling, the Second Circuit stated that the litigation “ignores economic reality” and that it is improper to use state litigation to circumvent Congress and the federal agencies on public policy questions.

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MAP Statement on the Supreme Court’s Ruling of BP PLC v. Mayor and City Council of Baltimore

Washington, D.C. — Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, issued the following statement in response to the Supreme Court’s ruling of BP PLC v. Mayor and City Council of Baltimore:

“The Supreme Court’s decision today to provide a full federal appellate review of the jurisdictional issues in this case and others like it should stop this effort by Baltimore and other communities to circumvent federal law and undermine national efforts to address climate change through comprehensive public policies, innovation and collaboration. As federal courts have repeatedly found, ad hoc rulings in local courtrooms around the country are not the proper way to address this important global challenge.

“Addressing climate change requires collaboration and innovation—not litigation—to overcome. Baltimore and the other communities pursuing similar litigation should focus on working with manufacturers to foster the policies and innovations required to address this challenge, as the overwhelming majority of communities have done. Americans are tired of the litigation sideshow and deserve real solutions.”

-MAP-

The Manufacturers’ Accountability Project (MAP) will set the record straight and highlight the concerted, coordinated campaign being waged by plaintiffs’ lawyers, public officials, deep-pocketed foundations and other activists who have sought to undermine and weaken manufacturers in the United States. This campaign will pull back the curtain to expose these efforts and to hold key actors accountable in order to protect our members and American manufacturing workers. The MAP is a project of the NAM’s Manufacturers’ Center for Legal Action (MCLA), which serves as the leading voice of manufacturers in the nation’s courts. Visit us at mfgaccountabilityproject.org.

MAP Releases 20-Year Timeline Tracing Climate Tort Litigation Campaign

As the U.S. Supreme Court prepares to hear oral arguments on January 19 in its review of a key issue in Baltimore’s climate change case against energy manufacturers, the Manufacturers’ Accountability Project is releasing a comprehensive timeline of the baseless climate tort litigation campaign. The timeline summarizes the history of these cases and links to foundational documents, court filings and other materials relevant to these cases.

Tracing nearly 20 years of climate tort litigation, this timeline is intended to serve as a resource for interested parties seeking to educate and familiarize themselves with the history of this years-long campaign that has now landed—once again—before the Supreme Court. Though the question before the court is a procedural one related to federal jurisdiction that is common to all the climate tort cases, the last time the high court considered a climate tort case, it unanimously found that climate change was, in fact, not a tort litigation issue at all (AEP v. Connecticut, 2011).

This timeline is designed to accompany MAP’s recently released Beyond the Courtroom: Climate Tort Litigation in the United States report. It provides an in-depth examination of the sophisticated campaign to influence municipalities and others’ decisions to bring climate tort litigation against energy manufacturers, despite the fact that litigation will do nothing to address climate change.

E&E News: Honolulu sues Big Oil for climate damages

Honolulu yesterday launched the latest legal battle against oil and gas companies over who should pay for climate change impacts like sea-level rise.

The city, which announced its intent to sue last year, submitted its challenge in the Oahu 1st Circuit Court after approval from the City Council (Climatewire, Nov. 6, 2019).

Josh Stanbro, Honolulu’s chief resilience officer, said during a press conference announcing the lawsuit that the city is following the footsteps of dozens of other municipalities challenging oil companies for “unjustly having to bear climate change and its impacts due to the information that’s been withheld over time by the fossil fuel corporations.”

He said the complaint echoes tobacco and opioid nuisance litigation, noting that fossil fuel companies knew for “decades and decades” that their products would cause “tremendous” local damage and that taxpayers would end up footing the bill. Stanbro noted that climate change may have cost Honolulu billions of dollars but that the exact figure would emerge during trial in the case.

“Instead of disclosing that information, [oil and gas companies] actually covered up the information,” he said. “They promoted science that wasn’t sound and in the process have sowed confusion with the public, with regulators and with local governments such as ourselves around what the true damages of these products were.”

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, said the lawsuit will cost taxpayers more by “scapegoating” the industry.

“People throughout Honolulu and the entire state of Hawaii need energy to power their homes and businesses, as well as the ability to bring tourists, goods and services to the islands,” he said. “The truth is that the best way to fight climate change is to engage with the manufacturing community on the major innovations.”

Maui County also announced plans last fall to fight the oil industry for compensation, but the county has yet to file its lawsuit.

The full article can be read here.

Legal Newsline: Baltimore gets favorable decision letting its climate change case transfer out of federal court

The U.S. Court of Appeals for the Fourth Circuit has refused to reverse a remand order sending the City of Baltimore’s climate lawsuit to Maryland state court, virtually ensuring ExxonMobil, Chevron and other oil companies will face trial seeking billions of dollars in damages in an unfavorable venue they were hoping to avoid.

A three-judge panel on the appeals court rejected the oil companies’ argument the case should be removed to federal court under a statute that prohibits state courts from hearing lawsuits relating to acts by federal officers or under their orders. The defendants cited contracts with federal agencies and offshore drilling leases they said showed they were operating under the orders of federal officials.

The appeals court disagreed, saying the contracts cited weren’t enough to give the court jurisdiction. Federal appeals courts have extremely limited jurisdiction to overrule remand decisions by district courts, the Fourth Circuit panel said. The district court rejected the defendants’ other arguments against remand, including that the lawsuit involves purely federal questions of energy policy, and the U.S. Supreme Court declined to intervene while the appeal to the Fourth Circuit was pending. 

Last June, U.S. District Judge Ellen Hollander ruled that the climate lawsuit should return to state court, rejecting the reasoning of federal courts in New York and San Francisco that previously ruled climate lawsuits don’t belong in court at all. Baltimore is represented by Sher Edling, a law firm working under a contingent-fee contract. 

Phil Goldberg, a lawyer for the Manufacturer’s Accountability Project, said climate change “is not a liability issue for state or federal court.”

“This effort to try to scapegoat others may score political points, but it is not productive,” he said in a prepared statement. “If Baltimore officials really want to do something about climate change, they should work with manufacturers on energy innovations for the City, not waste everyone’s time with this baseless litigation.”

Other courts to consider climate litigation have found it presents non-justiciable questions of policy. In a 2018 decision, U.S. District Judge William Alsup dismissed lawsuits by San Francisco and Oakland, saying the scope of the legal theory developed by plaintiff lawyers was “breathtaking,” and would “reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.” A federal judge dismissed New York City’s climate lawsuit also in 2018 and in December a state court judge in New York rejected that state’s “ill-conceived” lawsuit against ExxonMobil over allegations it misled investors about climate change.

The full article can be read here.

Bloomberg Environment: Baltimore Climate Case Against Big Oil Kept in State Court

Baltimore’s legal effort to hold fossil fuel producers liable for climate change can proceed in the state court where it was filed, a panel of judges ruled Friday in a blow to companies facing climate litigation across the country.

The U.S. Court of Appeals for the Fourth Circuit sided with Baltimore in the latest stage of its lawsuit against BP Plc, Exxon Mobil Corp., and other multinational energy companies—one of a dozen pending cases targeting the industry for its role in rising global temperatures.

Chevron Corp. has already vowed to challenge the decision.

Baltimore says oil and gas companies should cover the costs of raising local streets, enhancing stormwater infrastructure, and making other local investments to address damages linked to climate change. The city and the companies disagree on whether the case belongs in state or federal court.

The full article can be read here.