By William Savitt, Anitha Reddy, Bita Assad (h/t to Felix Bronstein)
Wachtell, Lipton, Rosen & Katz
Last week witnessed a critical but largely unremarked advance for plaintiffs seeking to impose liability on major public companies for the social costs of climate change.
The Ninth Circuit’s ruling in City of Oakland v. BP PLC cleared the path for state-court litigation against corporate defendants on the theory that producing, distributing, using, or profiting from fossil fuels constitutes a “public nuisance.” The cities of Oakland and San Francisco sued large energy companies in California state court, seeking an order requiring them “to fund a climate change adaptation program for the cities.” The energy companies removed the case to federal court and moved to dismiss the complaint. The district court agreed with the energy companies that the cities’ state-law nuisance claim was governed by federal law.
“If ever a problem cried out for a uniform and comprehensive solution,” wrote the district judge, it is the “geophysical problem” of climate change. “A patchwork of fifty different answers to the same fundamental global issue would be unworkable.” Unpersuaded, the Ninth Circuit concluded that the cities’ claim neither presented a “substantial question of federal law” nor was completely preempted by the federal Clean Air Act.
The Ninth Circuit’s decision invites countless actions by states, municipalities, and private litigants in state courts all over the country. Absent a mechanism for uniform federal adjudication, public policy regarding climate change—as in past mass-tort litigation—will be made case-by-case in a “patchwork” of state court decisions. As we have previously noted, the liability risk extends across the economy, far beyond the energy sector. And the tort system, when confronted with civil litigation claiming broad social injury, is often indiscriminate in extracting enormous damages from corporate defendants—even those seemingly far afield from the alleged liability-creating conduct.
Corporations and directors can nevertheless manage their exposure by actively evaluating climate-related risk, considering sustainability initiatives, implementing appropriate operational and board monitoring procedures, and documenting all these efforts. But the time to act is now—when the climate-related liability and fiduciary risk for most companies is visible but not yet acute.
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The Ninth Circuit appears to be on a roll this week.
More activist judging that will get overturned at SCOTUS.
Those cities that are suing are burning fossil fuels in their motor vehicle fleets, in their homes for cooking and heating. One of the court rulings should be that in order to sue, they must demonstrate that they are using no fossil fuels themselves. If they are, it should be tossed out forthwith.
From the article: “The Ninth Circuit’s ruling in City of Oakland v. BP PLC cleared the path for state-court litigation against corporate defendants on the theory that producing, distributing, using, or profiting from fossil fuels constitutes a “public nuisance.”
Oakland is going to have to prove fossil fuels are a public nusance, which means they will have to prove that human-caused climate change exists and is therefore an issue. All the Alarmists in the world cannot prove human-caused climate change is real, so I doubt Oakland will do any better.
Oakland can’t show they have been damaged by human-caused climate change. One can’t be damaged by something that doesn’t exist. Only in the mind, and there seems to be a lot of that kind of damage in the world.
Four more years of Trump and he will straighten that Ninth Circuit out. 🙂
Only those recognized by the courts as “experts” are allowed to testify.
Tom they only have to “prove it” to the courts satisfaction. There’s a lot of far left judges in Cali that will be satisfied with an assertion without any actual evidence as long as it fits their political views.
“Tom they only have to “prove it” to the courts satisfaction. There’s a lot of far left judges in Cali that will be satisfied with an assertion without any actual evidence as long as it fits their political views.”
I realize that. That’s how we got here in the first place. But I would expect a higher court to overturn any such ruling which is based on nothing of substance, once the case is moved out of California.
Don’t forget that the ultimate proof for the Endangerment Finding was “The IPCC says so!”
It’s only a procedural decision, whether federal or state common law applied.
There is still the hurdle of proving the nuisance which as the Federal district judge found is pretty impossible.
I can’t see the state common law hurdle being any easier and if they do will only apply in California. More taxes on California motorists will go down like lead ballons
I think you have it about right, Duker.
Have I got this correct?
If the City of Oakland were to win against BP, then any company or entity producing, distributing, using, or profiting from fossil fuels will also be liable, so in theory the City of Oakland will have to take themselves to court because not only are they using fossil fuels, they are profiting from the use of fossil fuels through taxes.
I wouldn’t mind seeing an actual court case with Climatologists vs Real Scientists but quite frankly when you see people like Judge Sullivan, I certainly wouldn’t trust the court with my life.
But the latest from Disneyland.
So, absolutely everyone is a public nuisance and the City expects to collect. Gangster government.
“But the time to act is now—when the climate-related liability and fiduciary risk for most companies is visible but not yet acute.”
Or is it?
Companies at risk of being targeted in this cynical ploy–that is to say, companies that furnished the products to the plaintiffs who willingly used them, and in many cases derived revenues by taxing their sale, might want to think twice before voluntarily performing meaningless gestures that accomplish nothing except to validate the corrupt premise alleged by the plaintiffs.
Why, in all,our names, is climate change assigned to humans?
Prove it. No one can
Anyone connected to the judiciary that refuses to acknowledge this fact is corrupt.
All States, Cities and counties have the ability to forbid the sale, or use, of fossil fuels within the boundaries of their jurisdiction. None have done so. The Judge that allowed this case to proceed is obviously partial and will be overturned.
You gotta love the US and A’s lawyers.
Is there precedence for successfully suing somebody for damages arising from something that hasn’t yet happened, and might not happen?
Also, I would have thought that specific, quantifiable, damages need to be shown. How else can a court determine the amount of any award? This implies that the plaintiffs are effectively going to be suing over (growth-adjusted) weather related damage, which insurance companies already know to be not increasing as required for fulfillment of the climate fairy tales.
Stop selling them fuel. Sit back and wait.