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Environmentalists see path to trial for climate nuisance cases after latest Big Oil loss

ExxonMobil and other oil majors’ attempts to move climate lawsuits brought by cities and counties to federal court have repeatedly backfired, a setback environmentalist attorneys say all but guarantees at least one of the cases will go the distance.

Cities and counties from San Francisco to Boulder to Baltimore are seeking billions in damages to compensate for adapting to climate change effects, including sea level rise, intensified storms, and worsening wildfires.

The number of cases, already over a dozen, is growing, and environmental attorneys say the cities’ recent wins in the court venue fights could embolden more legal action. In late June, attorneys general in Minnesota and Washington, D.C., brought new lawsuits against Exxon. Washington’s lawsuit also includes other oil majors, such as BP and Shell, and Minnesota is also suing the American Petroleum Institute and Koch Industries.

“Normally it’s three strikes, and you’re out. I think they’re up against it,” said Richard Wiles, executive director of the Center for Climate Integrity of the oil companies. The Center for Climate Integrity, an initiative of the Institute for Governance and Sustainable Development, works on litigation against fossil fuel companies.

It’s “increasingly likely that these cases are going to get to trial somewhere,” Wiles added. “At that point, the truth about industries’ lying would come out. Their absolute worst nightmare is to go to trial.”

On Tuesday, a panel of judges for the U.S. Court of Appeals for the 10th Circuit rejected a request from Exxon and Suncor Energy to move a climate case brought by the city and county of Boulder and San Miguel County to federal court.

It’s the third time in recent months oil companies have lost bids to move municipalities’ climate challenges to federal court. In May, judges on the 9th Circuit said two separate cases brought by a number of California cities and counties could proceed in state court. That followed a ruling in March by the 4th Circuit keeping a similar Baltimore lawsuit in state court.

If oil companies end up having to face multiple lawsuits in multiple state courts, it could become a financial burden, environmental attorneys say.

“Just think about the amount of lawyer fees and transaction costs that are going to be incurred if they have to defend every single one of these cases all across the country and more coming online all the time,” said Pat Parenteau, a law professor and senior counsel at Vermont Law School’s Environmental Advocacy Clinic.

If the companies aren’t able to “strike a killer blow” at some point, “they’re in real trouble,” he added.

Industry attorneys, though, say the venue fight isn’t over yet.

Oil companies have asked the Supreme Court to weigh in on where the Baltimore case should be heard, though it’s unlikely the court will take up the issue during its summer term, which wraps up Thursday. The oil majors also face a Thursday deadline to ask the full 9th Circuit court to reconsider where the California cases should be heard.

Phil Goldberg, special counsel for the National Association of Manufacturers’s Accountability Project, said the cities, counties, and states bringing the lawsuits are trying to “forum shop” for the courts and judges where they think they could have the best success.

“That should be of concern to the Supreme Court,” Goldberg said. The NAM’s Accountability Project is supporting the oil companies in the lawsuits.

Even if state courts do get to the merits of the lawsuits, Goldberg said the municipalities face an uphill battle. The cases brought by cities and counties largely bring claims under public nuisance laws, which have not been applied to climate change damages before.

“If you have the courts applying the law the way public nuisance has always been applied, there’s no chance these lawsuits can succeed,” Goldberg said. In addition, he said two judges who have addressed the merits thus far, including a federal district court judge in California, have said the courts aren’t the place to deal with an issue as far-reaching as climate change.

“The problem deserves a solution on a more vast scale than can be supplied by a district court judge or jury in a public nuisance case,” Judge William Alsup said in a June 2018 ruling throwing out the lawsuit brought by San Francisco and Oakland. The 9th Circuit’s order in May reversed Alsup’s ruling, however.

The oil companies and their allies have argued the growing number of city and state climate lawsuits are inherently political, attempting to force climate policy through the courts. They’ve argued, as Alsup suggested in his ruling, that courts must defer to Congress and the federal agencies, who are better suited to handle larger policy questions.

The goal of these lawsuits is “to diminish the political power of these energy companies” and to file enough lawsuits “to make the threat of litigation appear so costly and high risk that the companies will settle them and adopt whatever policy positions that the plaintiffs and their lawyers want adopted,” Goldberg said.

Environmental attorneys, though, say the cases aren’t about policy, but about damages and liability, two issues the courts are familiar with and well-equipped to handle.

“We’ve got you on the facts, policy be damned,” Parenteau of Vermont Law School said. “It isn’t about policy. It’s about sea walls.” He added cities and counties are incurring damages now, to pay for rebuilding after extreme storms and to protect against sea level rise.

These are cases with “actual provable damages you can tie to the defendants. Those are torts,” Parenteau added, referring to tort law. “They’re monster torts for sure, but they’re torts.”

Wiles, of the Center for Climate Integrity, said oil companies’ arguments don’t bear out because the climate damages cities, counties, and states have already incurred aren’t going to go away.

“This whole bogus idea that this is just an attempt to solve climate change through the courts is just ridiculous,” he said. “We agree that the Congress is the place you should solve climate change, but the courts are the place where we decide who pays for it, who pays for the damage.”

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