Talk about bad timing.
Just one day after a federal judge dismissed New York City’s climate change lawsuit targeting energy companies, the City of Baltimore became the latest municipality to join the misguided legal campaign. The timing of their announcement perplexed local and national reporters and observers alike, causing them to wonder why the city was initiating a climate case so soon after federal judges dismissed three related lawsuits.
State Court Vs Federal Court
City officials, led by Baltimore Mayor Catherine Pugh and City Solicitor Andre Davis, were forced to explain how this lawsuit would differ from those that have already been dismissed elsewhere. Pugh and Davis were confident that their case would be heard in state court where it would – theoretically – have a better chance of success.
“You probably know that there have been several other cases of this sort filed around the country, and in particular, just yesterday, a federal judge in New York dismissed a case similar to this one,” Davis said at a press conference Friday morning. “But there have been no appellate ruling[s] in any of the cases, and, as I said a moment ago, this case will be filed in state court.”
As EID has noted previously, however, this talking point has been debunked time and time again. The city’s complaint is virtually identical to those of several other cities that have brought similar public nuisance litigation. Baltimore is even being represented by Sher Edling – the law firm involved in all of the remaining lawsuits in California as well as the state of Rhode Island in their individual cases.
Though Sher Edling has not been counsel in any of the cases that have been dismissed up to this point (those can be attributed to fellow plaintiffs’ attorney Matt Pawa and his law firm, Hagens Berman), the arguments Baltimore and the other Sher Edling-represented localities rely on are the same as those that have been struck from two federal courts on opposite ends of the country.
Even independent of this fact though, the reactions to Baltimore’s announcement Friday were swift and negative.
do you think the mayor could spend sometime on fighting Baltimore’s horrific crime rather than resources on fighting Big Oil ?
— Ernie Ellis (@erniereality) July 21, 2018
People being slaughtered by gun violence and this is how they are spending our tax money! What abject incompetence!!!Baltimore plans suit against oil and gas companies for their role in spurring climate change https://t.co/utwlxWr9NJ
— Terry Brown (@BrownYorel2061) July 20, 2018
— InsideSources (@InsideSourcesDC) July 20, 2018
Reporters Push City Leaders on Hypocrisy
Even the city’s own proved skeptical of the latest public nuisance lawsuit from its outset.
“The city still uses products from these companies, right? Oil, gas, things like that?” local Baltimore TV station anchor Barry Simms asked during the press conference on Friday.
“We all haven’t gone to feet yet,” Mayor Pugh replied.
Baltimore Case Follows NY, Calif Cases
The U.S. district judges responsible for dismissing the other cases – Judge William Alsup in California and Judge John Keenan in New York – pointed out many flaws in the plaintiffs’ arguments throughout the course of hearing the cases brought by San Francisco, Oakland, and New York City.
Judge Alsup dismissed the two lawsuits out of California at the end of June, seeing through Pawa’s attempts to portray San Francisco and Oakland’s cases as completely unique instead of rehashed arguments that had already been dismissed in AEP v. Connecticut. In that case, the plaintiffs’ attorneys – one of whom was Matt Pawa – argued that several utility companies’ operations were causing a public nuisance by emitting greenhouse gases into the atmosphere and they should be held accountable for such.
In a unanimous vote in 2011, the U.S. Supreme Court dismissed the case, opining that the regulation of emissions was a matter of policy that only Congress, not the Courts, had the power to address, and that Congress had, in turn, delegated that authority to the U.S. Environmental Protection Agency through the Clean Air Act.
In his own ruling, Alsup wrote that despite the cities claiming they seek to hold the companies responsible for their production, promotion and marketing of fossil fuels, it’s fossil fuel emissions that their argument relies upon – just as it was in AEP v. Connecticut:
“Here, by contrast, defendants stand accused, not for their own emissions of greenhouse gases, but for their sale of fossil fuels to those who eventually burn the fuel. Is this distinction enough to avoid displacement under AEP and Kivalina? 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)
Similarly in New York, Judge Keenan echoed Judge Alsup when he questioned Pawa during a hearing in April. The Associated Press reported on the hearing, highlighting a conversation between Keenan and Pawa in which the judge pressed the plaintiff’s attorney on whether he recognized his argument was based on fossil fuel emissions, and not actually on the companies’ production of fossil fuels:
“And at least twice, the judge asked if the city was hiding an emissions case in language meant to seem it was instead targeting the companies’ production and sales operations.
“’Aren’t you trying to dress a wolf up in sheep’s clothing?’ he asked attorney Matthew Pawa, who represented the city.
“’Aren’t the plaintiffs using the product?’ Keenan asked. ‘Does the city have clean hands?’
“’Yes, the city uses fossil fuels,’ Pawa responded.”
As many were quick to point out, Baltimore has many pressing issues it needs to address. Engaging in frivolous litigation in a desperate attempt at a cash grab isn’t one of them.