A Pasadena courtroom hosted a showdown this Wednesday when plaintiffs’ attorneys Vic Sher and Michael Rubin came together to once again ask judges to move their climate cases to state court, where they believe their cases have greater odds of success. Lawyers for the defendants – over a dozen investor-owned energy producers – argued that “the case is drenched in federal issues from any angle you look at it,” and therefore should be heard in federal court.
Here are the biggest takeaways from today oral arguments on the consolidated cases County of San Mateo v. Chevron Corp and City of Oakland v. BP p.l.c..
Plaintiffs’ Attorney Contradicts His Own Case, Facts
Arguing at the hearing was attorney Vic Sher of Sher Edling LLP, the law firm spearheading the effort to waste taxpayer dollars to pursue frivolous and unsuccessful climate litigation campaigns across the country. Sher showed his desperation for a legal win in front of the Ninth Circuit Court of Appeals when he repeatedly claimed the federal government didn’t know about climate change. Sher was responding to the defendants’ argument that the cases raised federal issues because the federal government has repeatedly promoted and encouraged the production of fossil fuels. Sher said:
“There is no evidence that the government even knew about the issue of climate change and ordered any kind of production or activity regardless. The Supreme Court in Boyle says that’s the key question, this court in Leite… talked about that, and the Fifth Circuit in the Winters… case talked about it. In each of those instances, the defendant claiming federal officer status presented detailed evidence that the government had full knowledge of the dangers of which the plaintiffs complained there hadn’t been warning.” (emphasis added)
In reality, the federal government has known about the risks associated with climate change since at least the 1960’s:
“By 1965, concern about the risks of anthropogenic greenhouse gas emissions reached the highest level of the United States’ scientific community. In that year, President Lyndon B. Johnson’s Science Advisory Committee Panel on Environmental Pollution reported that by the year 2000, anthropogenic CO2 emissions would ‘modify the heat balance of the atmosphere to such an extent that marked changes in climate . . . could occur.’”
This quote should be familiar to Vic Sher: it came directly from the very complaint that Sher Edling filed on behalf of the City of Santa Cruz, a plaintiff in the consolidated cases.
Whether Sher’s courtroom utterance was a momentary (if monumental) lapse in memory or a deliberate attempt to mislead the court, the Ninth Circuit Judges are unlikely to be persuaded. The evidence establishing the federal government’s understanding of climate change was presented as part of the blockbuster climate case Juliana v. United States, which the Ninth Circuit dismissed just last month, ruling that climate change must be addressed by the political branches of government and not the courts.
The Courts Cannot Solve Climate Change
The courts have ruled time and again that they lack the necessary jurisdiction to rule on climate change. When ruling on the original San Francisco and Oakland complaint in 2018, U.S. District Court Judge William Alsup concluded that the court cannot adjudicate on climate change-related issues since they have global implications:
“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.” (emphasis added)
Climate activists were equally unsuccessful on the east coast. In 2018, U.S. District Judge John Keenan firmly ruled that “global warming and solutions thereto must be addressed by the two other branches of government” in New York City’s lawsuit against five major energy companies.
Perhaps ironically, the very same court presiding over this case concurred with both Judges Alsup and Keenan in another climate lawsuit just last week. The high-profile Juliana v. United States promised to be a historical use of the judiciary to address climate change, but in reality, it was yet another swing and a miss. Ninth Circuit Court of Appeals Judge Andrew D. Hurwitz issued this illuminating statement in his ruling:
“The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2.’ Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.” (emphasis added)
The striking consistency over the course of multiple years and three federal judges may explain Sher’s Hail Mary attempt to rewrite history in this week’s hearing.
U.S. Dept. of Justice Agrees with Energy Producers
Jonathan Brightbill, an attorney for the U.S. Department of Justice, also addressed the panel of judges yesterday, supporting the energy producers’ push to have the cases heard in federal court:
“The United States is here because of the significant federal interest in having the federal government and specifically the political branches of the federal government and its congress, its president, and the executive agencies, set and continue to set national policy in this country relating to the complex questions related to greenhouse gas emissions and climate change. To set those policies in a manner that balances Judge Alsup’s opinion, the multitude of competent environmental, economic, social, energy, and national security interests at stake,… and in a manner that is appropriate for resolution of these questions to which the United States believes that a case and controversy such as this is not.” (emphasis added)
Judge Alsup, the U.S. Department of Justice, energy producers, and independent legal experts all agree that no state court could—or should—rule on an issue with a scope as large as the one Mr. Brightbill describes.
