Ninth Circuit Revives Climate Litigation In California

The Ninth Circuit Court of Appeals issued two rulings in favor of California municipalities that are suing energy companies for alleged costs of combating climate change, allowing one case to proceed in state court while reversing the dismissal of another.

While this is being cast as a procedural victory for the cities, the panel clearly agreed with the companies that the courts are not the appropriate venue to craft climate policy.

A three-judge panel reaffirmed that San Mateo, County of Marin, City and County of Santa Cruz, City of Imperial Beach, and City of Richmond – legally consolidated under San Mateo County – could pursue their lawsuits in state court, as U.S. District Court Judge Vince Chhabria ruled in 2018.

In its other opinion, the Circuit court judges reversed a decision from U.S. District Judge William Alsup, who dismissed San Francisco and Oakland’s lawsuit in 2018 after ruling that 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.”

Although U.S. District Judge Sandra Ikuta rejected arguments that the cases belonged in federal court, she also recognized the important policy factors in play:

“The question 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, but it does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction.” (emphasis added)

Though the panel acknowledges the issue at hand is a policy question, not a legal one, the judges’ narrow ruling states that they don’t have jurisdiction to rule on the underlying issues.

Instead, they remanded the San Mateo case back to state court and sent the Oakland case back to Judge Alsup for him to determine if there’s an alternative basis for federal jurisdiction.

Policy Questions Shouldn’t Be Decided In Courts

The energy companies have argued that efforts to combat climate change via the courts are misguided.

In absence of a domestic climate law, states and municipalities are using the legal system to villainize companies for energy production, even though state and federal laws have instructed, even encouraged, these companies to do exactly that.

In one filing early in the Oakland case, for example, lead defendant Chevron noted that there are federal and California state laws on the books that explicitly promote the production of fossil fuels:

“The California Public Utilities Code, for example, mandates that the Public Utilities Commission ‘shall . . . encourage, as a first priority, the increased production of gas in this state[.]’ Cal. Pub. Util. Code § 785 (emphasis added). And the California Public Resource Code permits ‘the owners or operators of [] wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons,’ declaring it the ‘policy of this state’ to maximize fossil-fuel production. Cal. Pub. Res. Code § 3106(b) (emphasis added) …”

More recently, during oral arguments in February, counsel for the energy companies explained to the Ninth Circuit that mitigating mankind’s impact on the climate is a complex matter of public policy that should be handled by Congress and federal agencies.

In the same court, a month prior, Judge Andrew D. Hurwitz recognized that fact in a ruling that shot down claims brought forth by Our Children’s Trust in Juliana v. the United States:

“The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2.’  Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.” (emphasis added)

A Limited Scope of Review

Although the energy companies removed San Mateo County’s complaints to federal court on eight separate grounds, the Ninth Circuit judges said they had jurisdiction to review only one – whether the district court erred in holding that the companies’ were not “acting under” the direction of a federal officer in some of their extraction activities.

Justifying that rationale, Judge Ikuta cited the Fourth Circuit’s March ruling that remanded Baltimore’s public nuisance suit to state court after ignoring all grounds for removal except for the question of the federal officer removal statute.

Last month, the energy companies petitioned the U.S. Supreme Court to review that decision, arguing that the Fourth Circuit erred by not considering the rest of their arguments for removal.

The circuit courts are divided over the issue. In similar circumstances, for example, the Sixth and Seventh Circuits have reviewed entire orders, not just the federal officer removal statute.

Though the Supreme Court has yet to weigh in on climate litigation, a ruling from the nation’s highest court may be necessary to avoid what Judge Alsup called a “patchwork of fifty different answers to the same fundamental global issue.”

Read more at EID Climate