A federal judge dealt a devastating blow to the #ExxonKnew campaign Monday when he dismissed San Francisco’s and Oakland’s climate liability lawsuits against the top five investor-owned fossil fuel producers Monday, ruling that the courts were not the appropriate venue to set domestic and international climate policy.
The closely-watched case was seen as a bellwether for several similar lawsuits filed by New York City, Boulder, and nine other cities and counties in California and Washington. The judge’s ruling could give pause to other municipalities considering their own lawsuits.
U.S. District Court Judge William Alsup, who was appointed by President Bill Clinton, ruled it was inappropriate to blame a handful of oil and gas companies for global warming – especially when the emissions linked to that warming were the result of global energy demands.
The ruling was also another legal setback for plaintiffs’ lawyer Matt Pawa, a leader of the #ExxonKnew campaign who was hired to represent San Francisco and Oakland. Another federal judge expressed skepticism of the merits of New York City’s related lawsuit, also managed by Pawa, earlier this month.
Pawa’s previous attempts to make oil and gas companies pay damages for climate change, in American Electric Power v. Connecticut and Kivalina v. ExxonMobil, were similarly dismissed. In those cases, Pawa had targeted energy and utility companies for their greenhouse gas emissions. Hoping to create a distinction and avoid having San Francisco’s and Oakland’s cases thrown out due to that precedent, Pawa focused instead on targeting oil and gas companies for their production of fossil fuels.
Judge Alsup saw through Pawa’s maneuver:
“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)
Though Judge Alsup was ultimately able to dismiss the case by deferring to the legislative and executive branches, he peppered acknowledgement of the benefits of fossil fuels throughout his ruling:
“With respect to balancing the social utility against the gravity of the anticipated harm, it is true that carbon dioxide released from fossil fuels has caused (and will continue to cause) global warming. But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?…
“In our industrialized and modern society, we need (and still need) oil and gas to fuel power plants, vehicles, planes, trains, ships, equipment, homes and factories.” (emphasis added)
Judge Alsup also criticized the cities for seeking damages from climate change before those damages had actually occurred:
“Although plaintiffs allege that global warming has already caused sea level rise, Oakland and San Francisco have yet to build a seawall or other infrastructure for which they seek reimbursement. The United States Army Corps of Engineers has already proposed projects to address the problem and is likely to help protect plaintiffs’ property and residents. Oakland and San Francisco may eventually incur expense over and above federal outlays, but that is neither certain nor imminent. If and when those expense items are actually incurred, defendants will still be in business and will be good for any liability. Requiring them to pay now into an anticipatory ‘abatement fund’ would be like walking to the pay window before the race is over.” (emphasis added)
Ultimately, Judge Alsup determined that San Francisco and Oakland were asking him to rule on a global problem beyond the scope of his court:
“In sum, this order accepts the science behind global warming. So do both sides. The dangers raised in the complaints are very real. But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide. 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)