Judge William Smith of the U.S. District Court for the District of Rhode Island remanded Rhode Island’s lawsuit targeting 21 fossil fuel companies to state court on Monday. Rhode Island is seeking damages from energy companies to pay for the future costs of climate change.
Compared to his peers who have judged similar climate litigation cases across the country, Judge Smith’s ruling was uncommon.
Judge Smith, when describing the defendants, used charged language, characterizing oil and gas company operations as the direct cause of death and destruction:
“…Defendants in this case, who together have extracted, advertised, and sold a substantial percentage of the fossil fuels burned globally since the 1960s. This activity has released an immense amount of greenhouse gas into the Earth’s atmosphere, changing its climate and leading to all kinds of displacement, death (extinctions, even), and destruction. What is more, Defendants understood the consequences of their activity decades ago, when transitioning from fossil fuels to renewable sources of energy would have saved a world of trouble. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes – however existentially necessary – that would in any way interfere with their multi-billion-dollar profits.” (emphasis added)
Judge Smith’s description is markedly different from that of Judge John F. Keenan of United States District Court for the Southern District of New York. In his ruling on New York City’s case, Judge Keenan described the business operations of the fossil fuel companies in the suit with more measured language:
“Defendants produce, market, and sell mass quantities of fossil fuels, primarily oil and natural gas. Defendants are, respectively, the first (Chevron), second (Exxon), fourth (BP), sixth (Shell), and ninth (ConocoPhillips) largest cumulative producers of fossil fuels worldwide from the mid-nineteenth century to present.”
Where Judge Smith accused the companies of “displacement, death (extinctions, even), and destruction,” Judge William H. Alsup of the United States District Court for the Northern District of California dismissed San Francisco’s and Oakland’s related case while noting the great benefits provided by fossil fuels:
“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 Keenan dismissed New York City’s complaint last year, ruling that “federal common law displaces the City’s state law claims.” Judge Alsup likewise ruled that the lawsuits belonged in federal court:
“Plaintiffs’ nuisance claims—which address the national and international geophysical phenomenon of global warming—are necessarily governed by federal common law…
“If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making (and studying) with causes ranging from volcanoes, to wildfires, to deforestation to stimulation of other greenhouse gases—and, most pertinent here, to the combustion of fossil fuels…Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable.” (emphasis added)
Rhode Island’s Senator Whitehouse has been a vocal backer of the state’s lawsuit; Sen. Whitehouse even announced the suit last year alongside then-Attorney General Peter Kilmartin.
Rhode Island is being represented by Sher Edling, the California law firm representing most plaintiffs in climate litigation cases across the country. As pointed out by the Wall Street Journal, Victor Sher and Matt Edling, of Sher Edling, have made thousand-dollar donations to Senator Whitehouse within the last few years.
While Senator Whitehouse has endorsed Rhode Island’s suit, he has a poor track record supporting public nuisance cases in Rhode Island.
In the early 2000s, Sen. Whitehouse – then serving as Rhode Island’s attorney general – pursued paint companies around the state under nuisance law. The Supreme Court of Rhode Island ruled that the state had stretched public nuisance law beyond reasonable bounds. Time will tell if history will repeat itself.
