A major development in climate change litigation took place on May 26th as the U.S. Court of Appeals for the Ninth Circuit decided that lawsuits alleging that energy companies created a public nuisance through climate change could potentially belong in state courts. In 2017, San Francisco and Oakland (the “cities”) filed complaints in state courts alleging the energy companies had committed a public nuisance by promoting oil and natural gas fuels while knowing that they lead to drought, wildfires, and sea level rise associated with global warming. The cities sought to require the energy companies to fund a climate change adaptation program for the cities.
The energy companies removed the suits to federal district court, but the cities filed a motion for the federal district court to remand the suits back to state courts. The district court denied the cities’ motion for remand, holding that the cities’ complaints were governed by federal common law. The district court later dismissed the suit for failure to state a claim and lack of personal jurisdiction. The cities appealed to the Ninth Circuit.
In City of Oakland v. BP PLC, No. 18-16663 (9th Cir. 2020), the Ninth Circuit rejected the district court’s reasoning for denying remand. The Ninth Circuit instructed the district court to first determine whether an alternative legal basis existed for keeping the suits in federal court, but if none were found, the suits should be remanded to state courts. The Ninth Circuit’s decision also resolved an appeal by thirty energy companies defending against the counties of San Mateo, Marin and Santa Cruz, and the cities of Richmond and Imperial Beach who similarly allege that the energy companies should be held liable for the effects of climate change within their jurisdictions. In these suits, the federal district court remanded the suits to state courts. The Ninth Circuit upheld the district court’s remand.
The Ninth Circuit’s opinion is important because it could allow the complaints to be adjudicated under state law and potentially by jurors more familiar with the property damage alleged. The novelty of these suits is their limited scope. While many suits have sought sweeping, national relief for the effects of climate change under federal law, these suits seek to impose liability limited to the pollical boundaries of municipalities under the same laws a local factory could be sued for emitting obnoxious odors. The suits will analyze the complex issue of climate change in the legal context of local property law. However, while the suits are of limited scope, their precedential impact could be vast. The courts’ decisions in these cases will set precedent in the state and will potentially persuade municipalities throughout the country to seek similar relief.
For more information contact Brian Biering or Christian Briggs.
