Response to Ninth Circuit’s Decision on California Climate Litigation: Ruling Underscores Why the Supreme Court Should Hear These Cases

From the Manufacturers Accountability Project (MAP)

May 26, 2020    Washington D.C. – Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project, issued the following statement in response to today’s decision by the 9th Circuit U.S. Court of Appeals to keep climate litigation filed by the cities of San Francisco and Oakland and San Mateo County in state court:    

“The Ninth Circuit ruling identifies the main reason this case and all climate tort litigation is not suited for federal or state court, stating ‘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.’

Selling us the energy we need to power our homes, businesses and communities is not unlawful and, therefore, not a subject for tort liability in any court.

It makes no sense to spend years of judicial resources on these procedural rulings when it is abundantly clear that this is a policy issue for executive or legislative bodies, not courts. In fact, today’s ruling underscores why the U.S. Supreme Court should hear the climate tort cases now and resolve them once and for all.   

At the end of the day, mitigating climate change is not about scapegoating others, which may score political points, but developing the technologies we need to source and use energy more efficiently. If these California communities really want to do something about climate change, they should work with manufacturers on these energy innovations, not waste everyone’s time with this baseless litigation.”

-MAP-  

The Manufacturers’ Accountability Project (MAP) will set the record straight and highlight the concerted, coordinated campaign being waged by plaintiffs’ lawyers, public officials, deep-pocketed foundations and other activists who have sought to undermine and weaken manufacturers in the United States. This campaign will pull back the curtain to expose these efforts and to hold key actors accountable in order to protect our members and American manufacturing workers. The MAP is a project of the NAM’s Manufacturers’ Center for Legal Action (MCLA), which serves as the leading voice of manufacturers in the nation’s courts. Visit us at mfgaccountabilityproject.org.

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47 thoughts on “Response to Ninth Circuit’s Decision on California Climate Litigation: Ruling Underscores Why the Supreme Court Should Hear These Cases

  1. Doesn’t the Supreme Court have prewritten opinions overturning all decisions by the 9th Circus?

    • “Old Retired Guy May 26, 2020 at 3:23 pm
      Doesn’t the Supreme Court have prewritten opinions overturning all decisions by the 9th Circus?”

      LOL. If they don’t they probably should have. I think that is THE most overturned court of all time.

    • the 9th is being transformed. It’s not as knee-jerk anti-Constitution as it used to be.

      That said, it really needs to be split into three circuits, one of which can be as Commie as it wants to be, ie HI and CA. AK, WA and OR would still be pretty far out in Left field, but AZ, NV, ID and MT more pro-American.

        • I agree, really off base on that one. Being from Nevada, if the state votes democrat again this cycle, put my state with California in place of Alaska.

          • There is a period between CA and AK, not a comma. So not off base.

            You have a good point about NV, but it’s needed to connect AZ with ID.

      • I lumped CA only with HI. I put AK with WA and OR. Far from ideal, but geographically about the only way to go, unless with MT. I suggested AZ, NV, ID and MT as the new third circuit carved from the 9th.

      • Put Nevada in with WA, OR, and HI. Make a Rocky Mountain Circuit out of MT, ID, UT, AZ. Let the Alaska legislature decide if they want to be with WA, OR, NV, or in the Rocky Mountain Circuit.

        • Problem is that a circuit has to have more than one state. Despite its population of 40 million, CA can’t be its own circuit or districts united as a circuit. OR and WA could be their own circuit, with AK united to ID and MT, leaving NV and AZ on their own, but geography argues against that arrangement.

  2. So, if I sell you a package of utility knife blades and you use one to commit suicide I can be sued, as well as the manufacturer of said blades. Sounds reasonable to me! Who do I get to sue to become rich and famous?

    Really, sarc tag? I wants my big payday!

      • Well that is obviously there fault they did give you hot coffee .. clearly it should have been tepid at best.

    • If I hit myself on the head with a hammer, can I sue the manufacturer of the hammer for the concussion ‘I’ve got? There should be a warning label on the hammer saying it should not be used for inflicting injury on oneself. Tort law is getting crazy enough these days for it.

      • The manufacturer and the person who sold it to you, and if it was at work you sue the boss, the general contractor and the person who handed you the hammer out of the truck. Its how weses is gonna get rich now! Oh, and yourself to recoup all the lawyer fees you got to pay.

  3. The other major problem with Climate litigation by the states is that if you look who makes the most revenue from the sale of gasoline, you will find that in many cases, it is the states.
    CA & PA have the largest gas taxes in the nation. CA is $0.612 & PA is $0.587. The energy/oil companies don’t get half that much in profits. If one of this Climate torts ever succeeds, the states may end up with the bill.

    • States take in a lot of the profit from gasoline sales. Plus the states regulate the industry within their states. They also add new roads and widen others.

      If climate change was a real problem states can solve it. Just double or triple gasoline taxes. Have a $4000/yr registration fee on 8 cylinder vehicles, $3000/yr on 6 cylinder, etc. But global warming isn’t a real problem.

      As for revenue, states could have a sales tax, or VAT, of 24%, just like much of Europe.

      I don’t advocate either of the above, but the endless lawsuits are only making lawyers wealthy. … Aren’t most politicians lawyers?

    • > CA is $0.612 [excise taxes per gallon]

      It is a lot worse than that. CA taxes all the intermediate steps from strata to pump that add much more embedded taxation. In addition, CA dilutes their gasoline to have 10% less energy content per gallon. And don’t forget the deliberate congestion that causes consumers to spend more sitting in traffic.

    • Actaully CA charges even more… there is a CO2 fee applied at the refiner level.. which then adds sales tax on top of the fee at the pump. All states have a state tax on gasoline. If you really want to see how much CA really pays, simply subtract the state with the lowest average price for gasoline from the average in CA. The DIFFERENCE IS 100% due to fees and taxes CA places on gasoline. CA actually adds about $1.25 in fees and taxes. I count mandated special fuels as a CA assessed Fee as well.

    • Live in the UK…..petrol is £1.00 per LITRE, the taxation on that £1 is 77.8 pence (77.8%) !!

  4. While California believes they are “leading the nation, if not the world”, in virtue signaling their war on fossil fuels all they are doing is trumpeting their arrogance and stupidity.

  5. So the fossil fuel companies should simply pull out of the state and leave them to fend for themselves. Close the refineries and shut down all the company owned stations in the state. Truckers should refuse to make tanker deliveries as well. Railroads could be used, but who would do the buying and selling? It would be economic suicide to traffic in oil to California. LET THEM STEW IN THEIR OWN JUICES!

    • My thoughts exactly! But the rest of the United States will have to build a wall to keep the lunatics in the asylum. The problem with shutting them off is the rats will jump ship … and bring their stupid politics with them.

  6. Just like everything else they touch, leftists sitting on the bench across the country should be calling for Judge Sullivan to be removed from the bench.

    The silence from the Judiciary in the face of this outrageous and indefensible behavior parallels the silence amongst Climate Scientists regarding, for example, James Hansen who predicted that West Side Manhattan Highways would be under water in 40 years (32 years ago).

    Professionals in these occupations should not be allowed to stray so outrageously far outside the bounds of acceptable *in silence*. Hansen is still a respected spokesman and Sullivan will still be on the bench a year from now.

    Science has been corrupted and justice is not available to half the population in courts near the nation’s capital because the courts have been corrupted.

  7. “climate tort litigation is not suited for federal or state court, stating ‘whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels”

    More proof if proof is needed that climate change settled science is really anti fossil fuel activism in search of a reason why.

    https://tambonthongchai.com/2020/03/23/anti-fossil-fuel-activism-disguised-as-climate-science/

    https://tambonthongchai.com/2020/03/30/the-humans-must-save-the-planet/

  8. > the U.S. Supreme Court should hear the climate tort cases now and resolve them once and for all.

    That’s a misnomer and horrible idea. Ref: Dred Scott.

  9. Should not the courts be hearing cases against the counties, cities and People who choose to USE the products – after all, it is they who are producing the CO2.

    We do not see court cases against sugar providers even though there is actual harm being done by sugar with everything from dental issues to the obesity pandemic. Nobody is taking Maccas or other fast food(? – is it REALLY food?) to court for the demonstrable negative effects on individuals and society caused by their products.

    Should we see Conservative interests perhaps suing the manufacturers and providers of solar panels and wind turbines for the manifest harm they are causing in 3rd World countries – already perilous places to live but made much more so by the lakes of toxic waste and pollution caused by rare earth and heavy metal mining?

  10. If the plaintiffs were really smart, they would abuse the civil court system. This is how the Roundup, Talc/cancer link, and other weak data cases we’re decided. It is up to the defendant to prove innocence or the lack if a link.

  11. Isn’t there a consumer protection law that if said purchased product is not ‘fit for purpose’ then the consumer is entitled to a full refund?

    We the taxpayers of the globe demand a refund for the wind and solar renewables that have been installed thus far. This infrastructure is not ‘fit for purpose’ as it is not a ‘stand alone’ product. It can only exist if propped up by fossil fuels and our taxes. It was also professed to be ‘clean and green’ and it is blatantly obvious that it is neither of these.

    We also damand compensation for the damage done thus far to the environment and to ecosystems.

  12. CA is a one party liberal democrat owned sinking ship. Their politicians and courts are moving left at light speed. Soon entire state will be Detroit West! When they bankrupt I vote no bailout!!

  13. I wonder what would happen if the fossil fuel companies simply agreed to stop supplying fossil fuels to the cities, regions and states that were suing them. Give say 180 days notice with a very public countdown.

    • No warning, shut it all off. The lawsuits would be filed so fast the floor would smoke under their wingtips.

  14. “in state court:” At this point, if I own a fossil fuel energy company, I would stop selling my product in the land of fruits and nuts.

  15. At last, a legal decission stopping the anthropogenic global warming and climate change and psychopaths.

  16. At last, a legal decission stopping the anthropogenic global warming and climate change psychopaths.

  17. “…Selling us the energy we need to power our homes, businesses and communities is not unlawful and, therefore, not a subject for tort liability in any court….”

    I like to get things accurate. The energy companies are not being accused of ‘selling us energy’ – if they were then the Green’s preferred photo and wind generators would be equally at fault.

    They are effectively accused of GENERATING energy illegally. The concept they are accused under is complex, and is associated with the idea of ‘Human Rights’, which so many bought into during the 1980s/90s.

    Human Rights legislation is deeply at odds with the Anglo-Saxon approach to law, which asserts that anything not expressly forbidden is allowed. It sits much better with the Napoleonic Code-derived legislation from Europe, under which people are only allowed to do what the state lets them do.

    Under Napoleonic legislation, Human Rights legislation can act as a check on the wide application of state power, because it allows laws to be challenged under an independent set of guidelines. In Anglo-Saxon derived systems legislation is much more pragmatic and aimed at limited specific activities – here it has the effect of allowing any law to be challenged after it is enacted by interested activists on quite general grounds.

    Fossil-fuel energy companies are being attacked on the grounds that their generation processes are supposedly harming unborn generations. The Anglo-Saxon system allows people to generate energy in any way they like, until an obvious problem occurs and specific legislation is passed to stop that particular activity. So they are vulnerable to this ‘second bite’ from the activists. Under the Napoleonic European system the generating companies would have had to ask, and receive, explicit agreement from the state before generating and selling energy in this way, so they are already authorised to do so, and a ‘Human Rights’ attack would be far less likely to succeed……..

    • You can’t drill a well or move the oil without a whole series of permits and regulations. And taxes. Plus establishing a refinery and distribution system involves a massive regulatory regime. And more taxes. The distinctions between the two systems has significantly decreased as our multiple layers of government have closed down most rights.

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