It’s up to legislators, not one unelected judge, to decide whether countries around the world are better off without oil, U.S. District Court Judge William Alsup concluded this week, in his rejection of a climate liability case that pitted the cities of San Francisco and Oakland against five colossal fossils.
E&E News says the decision left other cities with similar cases and climate activists “reeling”.
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The two cities “had sued BP, Chevron, ConocoPhillips, ExxonMobil, and Shell to help pay for the costs of building seawalls and other projects to adapt to climate change,” Grist reports. “At least nine other cities and counties have brought similar lawsuits, including New York City, Boulder, Colorado, and King County, Washington.”
The decision was “the first major blow to the wave of climate suits that have been filed by communities across the country over the past year,” Climate Liability News states. “In his decision, Alsup said liability for public nuisance involves an ‘unreasonable’ interference, and determining if defendants behaved unreasonably ‘involves the weighing of the gravity of the harm against the utility of the conduct.’” He concluded the fossils’ conduct “was not unreasonable because everyone has benefitted” from their product.
“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted,” Alsup wrote. “Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say the sale of fossil fuels was unreasonable?”
While Alsup accepted the science of climate change, after famously conducting a public master class to have both sides brief him on the issue, he concluded the broader issue was beyond his jurisdiction.
“Questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate,” he wrote. “Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.”
Alsup also concluded that “a ruling against Big Oil would trigger a cascade of other lawsuits, and eventually put petroleum producers out of business,” Grist notes. “And this, he argued, would trample on the policies of countries that are actively encouraging oil production.” Which meant the two cities that brought the case were asking him to “conduct and control energy policy on foreign soil”, which “needs to be done by elected representatives, not one judge and jury making a decision for the entire world.”
“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case,” Alsup wrote.
“This is obviously not the ruling we wanted, but this doesn’t mean the case is over,” said John Coté, press secretary for the San Francisco City Attorney’s office. “We’re reviewing the order and will decide on our next steps shortly.”
But Coté said the litigation had already forced fossils to recognize climate science, after decades of work to undermine it. “We’re pleased that the court recognized that the science of global warming is no longer in dispute,” he said. “Our litigation forced a public court proceeding on climate science, and now these companies can no longer deny it is real and valid. Our belief remains that these companies are liable for the harm they’ve caused.”
InsideClimate News says the ruling might not have much bearing on complaints filed in state as opposed to federal court, including cases initiated in California by Marin and San Mateo counties and the city of Imperial Beach. “The judge in those cases rejected the motion to remove and remanded the cases back to state court,” said UCLA environmental law professor Ann Carlson. “State law will govern those cases, not federal law. And state law is much more favourable for the plaintiffs than federal law is.
But Jessica Wentz, staff attorney at Columbia Law School’s Sabin Center for Climate Change Law, said Alsup’s decision might have an impact beyond his own courtroom. “Certainly from a soft-persuasion perspective, I think it could influence what other judges decide,” she told E&E News. “They might look at his reasoning and see some sort of logic to it and apply some of the reasoning to their own decisions.”
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