By Dana Drugmand
A group of 10 states and the District of Columbia filed a friend-of-the-court brief with the Ninth Circuit Court of Appeals on Wednesday in support of San Francisco and Oakland’s climate liability lawsuits against fossil fuel companies, arguing the cases belong in state court and that courts should play a role in forcing accountability for climate change.
The cities’ suits seek to hold fossil fuel producers, including oil giants ExxonMobil, BP and Chevron, accountable for damages caused by climate change. U.S. District Judge William Alsup dismissed the cities’ cases last year. San Francisco and Oakland appealed the ruling and last week submitted briefs urging the appeals court to let their cases proceed in California state court where they were originally filed.
The coalition of state attorneys general—all Democrats, from California, Connecticut, Maryland, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington, as well as D.C.—rallied behind the cities.
“Our states and local governments protect the welfare of our residents by holding accountable those who harm our communities,” California Attorney General Xavier Becerra said in a statement. “Companies that reap the benefits of fossil fuels intensify the effects of global warming. We ask the Ninth Circuit Court of Appeals to allow our local governments to stand up for Americans who suffer the costs of climate change.”
In San Francisco alone, bayside sea-level rise driven by global warming risks at least $10 billion of public property and as much as $39 billion of private property. Those costs should not be borne solely by taxpayers, the cities say.
In their brief, the attorneys general wrote that the decision to keep the cases in federal court should be reversed, as should the dismissals. The states argue that climate change is not a “uniquely federal” issue and that while the Clean Air Act may displace federal common law in climate change cases, as federal courts have ruled in previous cases, it does not displace state common law.
“In cases where plaintiffs have alleged both federal and state common-law claims against greenhouse gas emitters, the Supreme Court and this Court have dismissed the federal claims— but not the state law claims—on the ground that they were displaced, and held that the state claims are viable unless preempted by statute,” the brief said.
Fossil fuel producers should be liable for climate damages because they knew about the link between fossil fuels and climate change for decades and publicly downplayed the risk to protect their profits, the attorneys general argued.
“It is undeniable that Big Oil is devastating our planet,” New York Attorney General Letitia James said in a statement. “The actions of these companies are felt in communities throughout our country and will only worsen in the absence of immediate action. We all play a role in holding these companies accountable for the harm they are causing Americans and our environment.”
The brief also claims Alsup mischaracterized the cities’ claims. Alsup agreed with the companies’ argument that the case threatened the separation of powers by asking the courts to intervene on an issue that involves national energy policy and foreign policy. But the states argued in their brief that the cities “request an abatement fund to remedy local harms resulting from the conduct of the producers and marketers of fossil fuels, not to compel the federal government to alter its national security strategy, foreign policy, or economic regulations.”
The Ninth Circuit is currently reviewing similar cases filed by other California communities that a different district judge ruled should be heard in California court. The fossil fuel companies appealed that ruling to the Ninth Circuit.
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