The U.S. federal government is pushing the U.S. Ninth Circuit Court of Appeals to reconsider a ruling that revived Oakland and San Francisco’s lawsuits targeting energy companies for the alleged costs of climate change.

On Monday, the U.S. Department of Justice (DOJ) filed an amicus brief in support of the companies’ petition urging the Ninth Circuit to rehear the case, arguing that the lawsuit “presents questions of federal law as to which the United States has a substantial interest and which warrant rehearing.”

U.S. District Judge William Alsup of the Northern District of California dismissed the cities’ lawsuits in 2018, finding 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.” The Ninth Circuit, however, reversed his decision in May after concluding that the case was improperly removed to federal court.

The DOJ wrote that the panel’s decision is “inconsistent” with preceding decisions by both the Ninth Circuit and other circuit courts and has led to “confusion” as to whether an erroneous removal is sufficient to dismiss the district court’s decision:

“Such a rule creates perverse incentives for litigants. It creates a “heads I win, tails you lose” regime for plaintiffs. … This ruling also conflicts with the precedents of the Supreme Court and this Court. Because it further contributes to a split in the federal courts of appeals on this exceptionally important question, rehearing is necessary.”

Further, the panel of Ninth Circuit judges that heard Oakland and San Francisco’s appeal did not consider federal common law, which the DOJ calls a “fundamental flaw,” as their case concerns interstate and international claims that are “inherently and necessarily federal in nature.” Though the cities’ claims are purported to be localized, in reality, they “seek to impose liability for conduct occurring on and impacting federal property and in other States,” and thus must be governed by federal law:

“[F]ederal law and policy has long declared that fossil ‘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.’

…

“If successful, these claims would, in practice, impose a tax on fossil-fuel production and use nationwide and potentially worldwide – but to the sole benefit of these Cities for an alleged harm shared by many. This would be a parallel regulatory structure to that of the [Clean Air Act], imposed not on activities in a single State – where the Act grants States regulatory authority – but on the economy as a whole. The fact that numerous localities (but only a fraction of the total) have brought these claims further highlights their practical effect in regulating behavior nationwide.” (emphasis added)

The DOJ’s amicus brief is the fourth filing requesting that the Ninth Circuit reexamine the case. Following the circuit court’s decision, Judge Alsup submitted a letter “to correct a mistake” in the panel’s ruling and asked the court to address “the merits of the ground on which removal jurisdiction was actually sustained.”

More recently, a group of twenty state attorneys general signed onto an amicus brief supporting the companies’ petition for rehearing, asserting that the cities’ claims “threaten to unconstitutionally supplant States’ own regulatory decisions in this area, usurp the political branches’ policymaking authority, and undermine important cooperative federalism programs.”

Similarly, the U.S. Chamber of Commerce also filed an amicus brief regarding the matter, warning of “potentially drastic consequences” if the cities’ claims are accepted:

“Allowing public nuisance claims like those asserted here would impose liability on businesses for decades-old conduct worldwide, that was lawful when and where it occurred, based solely on its undifferentiated global effects, even though—by the Plaintiffs’ own account—countless other actors worldwide contributed to the same alleged harms. If accepted, that tort theory would sprawl into other industries, with potentially drastic consequences.”

Although the Ninth Circuit recently denied a request for a rehearing in a similar set of consolidated cases brought by San Mateo County and other California municipalities, the decision on whether they will take up the companies’ request in San Francisco and Oakland’s case is still pending. As urged by the DOJ, state attorneys general, and the U.S. Chamber of Commerce, the court should rehear the case and address the many concerns that have been put forth about the dangerous consequences that would occur should it be allowed to proceed.