Ahead of the much-discussed “climate tutorial” in a federal court last week, Chevron quietly filed a memo with the court listing its key points and arguments in favor of dismissing the climate lawsuits, in which the cities of San Francisco and Oakland are targeting it and four other oil and gas companies. Though it was overshadowed by the informational session on climate science, the filing presents some of the most powerful arguments made to-date against the climate lawsuits.
The lawsuits accuse the defendants of creating a “public nuisance,” akin to a neighbor dumping his trash in the city park. But therein lies the problem – it’s the neighbor dumping that trash that is targeted by public nuisance laws, not the companies (i.e. Amazon, IKEA, etc.) that created and sold the discarded product. From Chevron’s filing:
“It is undisputed that Defendants did not control the fossil fuels at the time they allegedly created the nuisance—i.e., when they were combusted—and thus cannot be held liable…
“Plaintiffs’ claims depend on an attenuated causal chain including billions of intervening third parties—i.e., fossil fuel users like Plaintiffs themselves—and complex environmental phenomena occurring worldwide over many decades. Because of the nature of the phenomena alleged, there is ‘no realistic possibility of tracing any particular alleged effect of global warming to any particular [action] by any specific person, entity, or group at any particular level…’” (emphasis added)
The filing highlights how the plaintiffs and activists pushing these lawsuits recognize that their actions have contributed to global warming, but they are trying to avoid any responsibility for their actions. Instead, they want to shift responsibility on to fossil fuel producers, whom they fault for continuing to produce oil and natural gas. San Francisco and Oakland have known about climate change for decades and yet they continue to promote and use fossil fuels.
It can be easy to forget, given the heated rhetoric tossed about by supporters of these lawsuits, but it is still perfectly legal in this country to produce, market, sell, and use fossil fuels. Indeed, the defendants’ activities are not only permitted by law, but actually encouraged by both state and federal laws.
Chevron’s filing also cites numerous statutes that refute the plaintiffs’ claims that fossil fuels unreasonably interfere with public rights, including the Energy Policy and Conservation Act of 1992, the Energy Policy Act of 2005, the Mining and Minerals Policy Act, the Coastal Zone Management Act, and the Federal Lands Policy Management Act, all of which specifically call for the production of oil and natural gas within the United States:
“The Energy Policy Act of 2005 similarly speaks directly to the production of fossil fuels…(‘The purpose of this section is to promote natural gas production from the natural gas hydrate resources on the outer Continental Shelf and Federal lands in Alaska’); id. § 15910(a)(2)(B) (‘purpose of this section is . . . to promote oil and natural gas production from the outer Continental Shelf and onshore Federal lands’): id. § 15927 (‘[I]t is the policy of the United States that . . . United States oil shale, tar sands, and other unconventional fuels are strategically important domestic resources that should be developed to reduce the growing dependence of the United States on politically and economically unstable sources of foreign oil imports[.]’)…
“As discussed above, numerous federal statutes authorize, encourage, and sometimes even require the production of fossil fuels. California law also authorizes and encourages Defendants’ conduct. 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) …” (emphasis added)
After making it abundantly clear that the laws of the United States and California deliberately and unequivocally promote the production, sale, and use of oil and natural gas, Chevron summarizes why the climate litigation filed against it is so absurd:
“Whereas Plaintiffs allege that Defendants’ production of fossil fuels has created an ‘unreasonable’ interference with public rights, Oak. Compl. ¶ 95, Congress has stated in no uncertain terms that fossil fuels are essential for the national economy and that their production should be accelerated. Put simply, Plaintiffs seek to use federal common law to punish the precise conduct that Congress has encouraged for decades—the development of domestic energy supplies…
“A defendant’s conduct cannot be deemed ‘unreasonable’ when that conduct has been expressly sanctioned by statute, for it is well established that, even where ‘it would be a nuisance at common law, conduct that is fully authorized by statue, ordinance or administrative regulation does not subject the actor to tort liability.’”
Observing that the plaintiffs seek damages, in the guise of an abatement fund, for the effects of climate change, Chevron responds:
“But damages can be awarded only for harm ‘actually incurred,’ and Plaintiffs allege at most speculative future harms that may never eventuate…Plaintiffs’ requested damages award would also violate Defendants’ constitutional due process rights by imposing massive retroactive liability for conduct that was legal—in fact, encouraged—at the time it occurred (and still is today), as well as for protected First Amendment activities.” (emphasis added)
When Judge William Alsup, the federal judge presiding over the case, ruled that the case should remain in federal court, many believed he would quickly dismiss the case because of established precedent. The U.S. Supreme Court has unanimously ruled that it is the responsibility of the U.S. Environmental Protection Agency to regulate greenhouse gas emissions under the Clean Air Act, and that the courts should not interfere.
But the plaintiffs have argued that their lawsuit is focused on the production of fossil fuels, not their combustion. Chevron’s filing makes plain just how ridiculous that argument is:
“Seeking to avoid dismissal under AEP and Kivalina, Plaintiffs disclaim any attempt ‘to impose liability on Defendants for their direct emissions of greenhouse gases,’ Oak. Compl. ¶ 11, and instead purport to bring these ‘claims against defendants for having put fossil fuels into the flow of international commerce.’ ECF No. 134 at 7. But Plaintiffs’ own allegations reveal the inescapable centrality of greenhouse gas emissions to their alleged injuries. E.g., Oak. Compl. ¶¶ 38 (‘when used[,] . . . fossil fuels release greenhouse gases), 39 (‘use of fossil fuels emits carbon dioxide’), 45 (‘emissions resulting from human activities are substantially increasing . . . greenhouse gases’), 48 (‘increase in atmospheric carbon dioxide caused by the combustion of fossil fuels’), 52 (‘fossil fuels[,] . . . when combusted, emit carbon dioxide’). As this Court recognized, Plaintiffs claim that the use, not the production, of fossil fuels emits carbon dioxide and causes the alleged harms…
“According to Plaintiffs, increased carbon dioxide concentrations have led to higher global temperature, and it is ‘likely’ that ‘human influence has been the dominant cause of the observed warming since the mid-20th century.’ Oak. Compl. ¶¶ 39, 47. Plaintiffs propose to remedy this worldwide problem by holding a select group of fossil fuel companies liable for lawful conduct occurring around the world.” (emphasis added)
That last paragraph is particularly important, because it notes that climate change is a global problem created by every person and entity on the planet, thereby placing it out of the jurisdiction of even our federal courts:
“Dismissal is also warranted because the relief Plaintiffs seek is not available under federal common law. Although in appropriate circumstances a federal court ‘may grant equitable relief to abate a public nuisance that is occurring or to stop a threatened nuisance from arising,’ Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 781 (7th Cir. 2011), Plaintiffs do not seek an injunction. Nor could they, as the Complaint fails to identify any specific conduct in any particular location that allegedly caused the nuisance. And even if this Court were to issue a nationwide injunction against all fossil fuel production, such an order would not abate the alleged nuisance—though it would devastate the U.S. economy—because global warming is caused by global emissions that this Court has no power to enjoin.” (emphasis added)
The Chevron filing makes it clear that these lawsuits don’t have a leg to stand on and should be summarily dismissed. The filing itself offers a fitting conclusion:
“At bottom, Plaintiffs are trying to regulate the nationwide—indeed, worldwide—activity of companies that play a key role in virtually every sector of the global economy by supplying the fuels that enable production and innovation, literally keep the lights and heat on, power nearly every form of transportation, and form the basic materials from which innumerable consumer, technological, and medical devices are fashioned. The Complaints contradict numerous federal statutes and raise myriad constitutional issues. For these reasons and more, cases asserting nearly identical claims—including several filed by the same private lawyers representing Plaintiffs here—have been repeatedly rejected by U.S. courts. The result here should be the same.”