By Karen Savage
Six California municipalities scored crucial wins on Tuesday when the 9th U.S. Circuit Court of Appeals sent their climate liability suits against several fossil fuel companies back to state court, rejecting the companies' arguments that the cases belong in federal court.
The 9th Circuit is the second appellate court to rule that climate-related lawsuits brought by municipalities across the country belong in state court. The 4th Circuit ruled earlier this year that a case filed by Baltimore against more than two dozen fossil fuel producers and distributors belongs in state court. The 10th Circuit is currently considering whether a suit filed by three Colorado communities belongs in state or federal court, and the 1st Circuit is reviewing the issue in a case filed by Rhode Island.
"I think a lot of plaintiffs were watching very carefully to see what happened in the 9th Circuit to see how this question of jurisdiction was resolved,” said Carroll Muffett, president of the Center for International Environmental Law.
The battle over jurisdiction — whether these cases belong in state or federal court — has been hotly contested. Fossil fuel companies are arguing for them to be heard in federal court, where the firms generally have had better success getting them dismissed. Municipalities want to keep them in state court, where the majority of the cases have been filed, and the plaintiffs expect to have better luck.
“With the 9th Circuit holding in favor of tort and nuisance claims based on state law, it's really going to open the door to lots of other public plaintiffs that may be considering similar suits,” Muffett said.
Suits filed by Honolulu, King County in Washington state, and the Pacific Coast Federation of Fishermen's Associations, a trade association of West Coast fishermen, have been on hold pending the 9th Circuit’s ruling and can now proceed. The county of Maui announced last year that it intends to file a climate liability suit, and is now expected to move forward with those plans. The decision could pave the way for other counties, cities, and states that fall under the 9th Circuit’s jurisdiction, too, including those in Hawaii, California, Nevada, Oregon, and Washington.
In California, the cities of Imperial Beach, Richmond, and Santa Cruz, as well as the counties of Marin, San Mateo, and Santa Cruz, filed suits in state court in 2017 against Chevron, Exxon, Shell, Citco, ConocoPhillips, Peabody Energy, and more than 30 other fossil fuel companies. The municipalities allege violations of state public nuisance laws, and are seeking compensation for climate change-related damages. Tuesday’s decision confirmed a district court judge’s ruling that those cases belong in state court.
Representatives from the six municipalities said in a joint statement that they look forward to “proceeding in state court, where the Californians we represent will have a chance to present the facts about what the defendants knew about the climate change-related dangers their fossil fuel products pose, how the defendants both deceived and didn’t warn us about those dangers, and why those companies should be held accountable for the costs of surviving climate change.”
In a separate ruling released on Tuesday, the 9th Circuit reversed the decision of a district court judge to dismiss suits filed in 2017 by Oakland and San Francisco against Exxon, Chevron, Shell, BP, and ConocoPhillips, indicating that those cases likely belong in state court as well. The ruling is more complex than those from other cases, as the lower court only ruled on one of several arguments by the fossil fuel defendants that the cases belonged in federal court.
Now, it has to decide whether any of the other jurisdictional arguments pass muster, and if not, send the cases back to state court.
“Whether the energy companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question, but it does not raise a substantial question of federal law for the purposes of determining whether there is jurisdiction,” Judge Sandra S. Ikuta wrote in the ruling.
“These lawsuits were filed to protect our residents, workers, and businesses from the harms of climate change knowingly imposed on our communities by the fossil fuel companies,” San Francisco City Attorney Dennis Herrera and Oakland City Attorney Barbara J. Parker said in a joint statement. “Today’s ruling from a unanimous Court of Appeals panel puts us one step closer to that goal.”
Despite the rulings, Chevron spokesman Sean Comey said the company still believes the cases belong in federal court.
“They present substantial issues of national law and policy which makes them inappropriate for state law,” Comey said in an email. “In whichever forum the cases are ultimately determined, these factually and legally unsupported claims do nothing to sensibly address the significant national economic, legal, and policy issues presented by climate change.”
Chevron and other fossil fuel defendants in Baltimore’s suit have petitioned the Supreme Court for review of the 4th Circuit’s decision to keep the case in state court. The high court has not yet indicated whether it will accept the petition, but Muffet said Tuesday’s decision lessens the likelihood that the high court will agree to a review involving jurisdictional issues.
“The Supreme Court is particularly reluctant to take up cases where the circuits are in agreement,” Muffett said. “When you have multiple circuits reaching the same conclusion, that makes the Supreme Court less likely to take up a case.”
The plaintiffs will now have to argue in state court against the oil companies' motions to dismiss these cases altogether.