Appeals Court Upholds Dismissal Of NYC’s Climate Lawfare Suit

The climate litigation campaign was dealt yet another stinging defeat in New York on Thursday after a federal appeals court rejected New York City’s attempt to revive its climate lawsuit against energy companies.

It’s the second major loss in the state for climate liability supporters in less than 18 months after the New York Attorney General’s securities fraud case against ExxonMobil was decisively defeated in late 2019.

The attorney general’s case was “most notable for … how badly it has fizzled,” a New York Post editorial observed at the time, and Reuters noted today that New York City’s lawsuit “failed to persuade.”

Ruling in favor of the companies, the U.S. Second Circuit Court of Appeals stated that the courts are not the proper place to regulate emissions and affirmed U.S. District Court Judge John Keenan’s 2018 dismissal of New York City’s case.

In a 51-page decision, the unanimous three-judge panel explained that global warming “is a uniquely international concern” that should be handled through federal and international policy, not the judicial branch:

“The question before us is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’” (emphasis added)

Unlike the other municipal and state climate lawsuits filed to date, New York City filed its case in federal court, not state court, hastening the pace at which the lawsuit was heard on its merits.

By filing in federal court, this case has avoided the federal v. state court procedural question that has stalled several of the other climate lawsuits – an issue that should be settled by an upcoming decision from the U.S. Supreme Court in Baltimore’s climate case.

The Second Circuit also ruled that the Clean Air Act delegates the regulation of greenhouse gas emissions to the U.S. Environmental Protection Agency, not the courts, making a lawsuit an inappropriate avenue for addressing the regulation of emissions:

“To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” (emphasis added)

Notably, the court reprimanded New York City for using the judicial system to try to achieve the political goal of trying to shut down the oil and natural gas industry:

“Thus, while the City is not expressly seeking to impose a standard of care or emission restrictions on the Producers, the goal of its lawsuit is perhaps even more ambitious: to effectively impose strict liability for the damages caused by fossil fuel emissions no matter where in the world those emissions were released (or who released them). If the Producers want to avoid all liability, then their only solution would be to cease global production altogether.” (emphasis added)

It’s a sharp rebuke to the case and New York City Mayor Bill DeBlasio, who has said that shutting down oil and natural gas production was the goal of this lawsuit.

In a 2018 interview with Sen. Bernie Sanders, DeBlasio remarked that his energy and environmental goals weren’t about finding solutions for climate change, but rather to put the oil and natural gas industry out of business, saying, “Let’s help bring the death knell to this industry.”

The chief of the environmental law division of the New York City Law Department and counsel for the City, Susan Amron, made similar comments during the 2018 NYC Climate Week:

“So, we’re not saying you can’t use fossil fuels, that’s a different part of the city’s efforts, but what we’re saying to the companies is that if you’re going to promote fossil fuels that you need to internalize the cost that these fossil fuels are imposing on cities, and New York City in particular. And really what we’re trying to do is affect the bottom line- the financial equation for the use of fossil fuels.” (emphasis added)

A Losing Campaign

The Second Circuit’s ruling may be the latest defeat for the climate litigation campaign, but it certainly isn’t the first.

In the summer of 2018, shortly before Judge Keenan’s dismissed the New York City’s case, U.S. District Judge William Alsup dismissed a similar climate lawsuit brought by the cities of Oakland and San Francisco, stating:

“[Climate change] deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

Since then, an appellate court ruling has revived this lawsuit and the energy companies have petitioned the U.S. Supreme Court to take up the case to address the question of jurisdiction.

The next year, the New York State Supreme Court served up another loss for the climate litigation campaign, tossing out the securities fraud case brought by the New York Attorney General, which signaled the death of the debunked “Exxon Knew” theory.

In his ruling, Ostrager concluded:

“In sum, the Office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor.” (emphasis added)

That case was touted by activists as a turning point in the climate litigation campaign and was billed as “historic” and the “trial of the century” by media, but its defeat, along with the losses in San Francisco, Oakland, and New York City means that every climate case that has been heard on its merits has been defeated.

Read more at EID Climate