by Karen Savage
Chevron attorney Ted Boutrous has sent letters to three appellate courts, arguing that the recent dismissal of the landmark youth climate case, Juliana v. United States, supports the argument by fossil fuel companies that all climate liability suits belong in federal court and should be similarly dismissed.
A three-judge panel of the U.S. Ninth Circuit Court of Appeals earlier this month dismissed Juliana, but the case was significantly different from the climate liability cases Boutrous argues should be dismissed on the same grounds. In Juliana, the young plaintiffs sued the U.S. government for violating their rights by exacerbating climate change. The Ninth Circuit panel ruled they did not have standing because climate change cannot be addressed through the judicial branch of government and instead must be addressed by the executive and legislative branches.
The cases Boutrous refers to in the letters, which were sent Wednesday to the Ninth, Fourth, and First Circuit courts, were filed in state courts against fossil fuel companies, alleging they violated state laws by selling a product they knew to be the main driver of global warming. Boutrous argues the Juliana ruling supports the fossil fuel companies’ argument that claims made by municipalities “arise under federal law, and thus support federal jurisdiction, even if those claims ultimately fail for lack of remedy.”
Dozens of municipalities across the country have filed lawsuits against Chevron and other companies seeking compensation for impacts that have already happened and for infrastructure improvements needed to protect their residents from the increasing effects of climate change. The communities emphasize that these companies knew decades ago their products would cause these impacts.
The jurisdictional question has been hotly contested in all of the suits, with the municipalities trying to get the cases heard in state court under state laws, and the industry fighting to put them in federal court, where they think they have a better chance of shaking the suits — thus the new emphasis on the federal dismissal of Juliana.
Doug Kysar, a deputy dean and professor at Yale Law School, said the Juliana case is far different from the liability cases and judges are unlikely to adopt Boutrous’ logic. “From a legal perspective, the relevance of the recent Juliana opinion is slim to nonexistent,” Kysar said. “The defendants’ argument, which … seems to suggest that all climate liability suits must be heard in federal court, is not rooted in law but in a perception that federal courts will cater to the defendants’ economic interests.”
Several federal court judges have ruled against the companies, sending cases filed by Rhode Island, Baltimore, and three Colorado communities back to state courts.
One letter from Chevron was sent by Boutrous to the Ninth Circuit, which will hold two hearings next Wednesday to consider arguments on the same jurisdictional issue in climate liability suits brought by several California communities.
The first hearing will focus on suits brought by Oakland and San Francisco. Those cities are appealing a decision by District Court Judge William Alsup to keep the suits in federal court and to later dismiss them. The court will also hear arguments in suits filed by Santa Cruz, Imperial Beach, and the counties of Marin, San Mateo, and Santa Cruz. Fossil fuel companies in those suits are appealing a decision by District Court Judge Vince Chhabria to remand the cases back to state court.
Chevron also sent letters to the First Circuit, which is considering the companies’ appeal of a lower court sending Rhode Island’s case to state court, and to the Fourth Circuit, which in December heard arguments in Baltimore’s case. Both of those cases are proceeding in state court pending rulings by the appellate courts.