Next month, the cities of San Francisco and Oakland will go before the U.S. Ninth Circuit Court of Appeals in an attempt to resurrect their previously dismissed climate case, once again trying to pin alleged future damages from global climate change on a handful of energy companies. The cities’ appeal is a last-ditch effort to build momentum in their overall anti-fossil fuel movement.

The case began in 2017, when the two cities filed their lawsuits against five of the world’s leading energy producers. In 2018, the case was dismissed for a lack of personal jurisdiction and now awaits appeal before the Ninth Circuit Court. Amid a brutal losing streak for activists pushing climate litigation, here are five things to keep in mind before oral arguments begin:

1. Climate Change is Out of Bounds in the Courts

The timeline for February’s oral arguments dates back to the Spring of 2018 when U.S. District Court Judge William Alsup heard attorneys from Hagens Berman argue that energy producers should pay for an abatement fund to help San Francisco and Oakland pay for costs associated with adapting to global climate change. Hagens Berman’s involvement is significant as it is one of the two main law firms representing states and municipalities in several public nuisance climate change lawsuits across the country.

Judge Alsup saw through the plaintiffs’ allegations, ruling that what the cities are actually asking for is the court to make a ruling regarding the companies’ greenhouse gas emissions, which are a federal issue that the courts cannot lawfully weigh in on:

“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case. While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches. The Court will stay its hand in favor of solutions by the legislative and executive branches. For the reasons stated, defendants’ motion to dismiss is GRANTED.” (emphasis added)

To justify his argument, Judge Alsup relied on the U.S. Supreme Court’s 2011 American Electric Power v. Connecticut ruling, in which the court unanimously concluded that the regulation of emissions is covered under the Clean Air Act and is therefore beyond the jurisdiction of the judiciary:

“The harm alleged by our plaintiffs remains a harm caused by fossil fuel emissions, not the mere extraction or even sale of fossil fuels. This order holds that, were this the only distinction, AEP and Kivalina would still apply. If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori, they cannot be sued for someone else’s.” (emphasis added)

2. The Numbers Don’t Add Up

San Francisco and Oakland are seeking billions of dollars from energy producers to prepare for potential climate-related impacts, including $5 billion for a seawall, $350 million for sewer and stormwater upgrades, and an unspecified amount for new port infrastructure. Throughout the complaint, the cities criticize current and future planned fossil fuel production and allege this conduct will exacerbate the impacts of climate change in their communities. However, in an attempt to skirt supreme court precedent set in AEP v. Connecticut, their complaints completely undermine any potential action to address these concerns:

“The People do not seek to impose liability on Defendants for their direct emissions of greenhouse gases and do not seek to restrain Defendants from engaging in their business operations.” (emphasis added)

Further weakening the cities’ complaints are California state laws that actively encourage fossil fuel production. California public utilities code mandates that the Public Utilities Commission “shall . . . encourage, as a first priority, the increased production of gas in this state,” while state public resource code declares it the “policy of this state” to maximize fossil-fuel production.

Contrary to the language in the complaint, these energy companies are actively helping to decrease emissions. Since 2005, natural gas has cut 50 percent more emissions than wind and solar combined and is responsible for 61 percent of U.S. electricity generation CO2 reductions.

3. Municipal Bond Language Raises Eyebrows

The cities have also come under fire for their alleged monetary damage estimates. In 2018, ExxonMobil, one of the defendants in the case, filed a petition in Texas District Court over “dramatic inconsistencies between the municipalities’ disclosure of climate risks in their bonds and their allegations of past and future damage from climate change in their lawsuits.”

In response, the plaintiffs hired attorney Martha Mahan Haines, former Assistant Director and Chair of the Security and Exchange Commission (SEC) Office of Municipal Securities, to defend their estimates. However, her analysis stood in stark contrast with the explicit projections outlined in each city’s climate lawsuit:

“…[D]isclosures of speculative information or projections, when included, are appropriately accompanied by cautionary language in order to emphasize their uncertainty.”

She added that “…in the case of sea-level rise and certain other climate impacts, municipal entities generally [would] not be greatly affected for decades…”

Contrasting with the imminent and certain climate change threats outlined in cities’ complaint, Haines explains that future damages from climate change are both uncertain and nearly impossible to quantify. In other words, both the complaint and the expert report highlight the reality of what this lawsuit is: a shameless cash grab.

4. “Exxon Knew” is Already Dead

San Francisco’s and Oakland’s cases were originally filed as part of attorney Matt Pawa’s strategic crusade against the energy industry, in the hopes of re-creating the massive settlements obtained in the tobacco litigation of the 1990s. This highly coordinated effort to “delegitimize” the energy industry has been debunked time and time again, suffering a fatal blow in October when the New York attorney general’s office lost its securities fraud case against ExxonMobil, after failing to collect any evidence to support its “hyperbolic” allegations against the company. If the New York case or Judge Alsup’s previous dismissal are any indication of how the others will proceed, it’s likely that San Francisco’s and Oakland’s appeal will go down in similar flames.

5. Children’s Trust Ruling Foreshadows City Appeal

The storied Our Children’s Trust climate case was thrown out last week by the same court that will hear San Francisco’s and Oakland’s case next month. Unlike San Francisco’s and Oakland’s public nuisance lawsuit, Juliana v. United States was brought on the basis of the “public trust” doctrine, a legal principle that can compel the government to preserve the atmosphere or “climatic system” for public use. Nevertheless, Ninth Circuit Court of Appeals Judge Andrew D. Hurwitz reached a nearly-identical conclusion to Judge Alsup’s ruling:

“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. (11)”

As such, the Juliana v. United States ruling is yet another sign that San Francisco and Oakland are in big trouble come February.