An interesting battle currently is playing out in the California courts involving what can be considered a “second generation” of climate change suits that seek to hold producers of greenhouse gases responsible for the costs that government entities are forced to expend in adapting to climate change. In July 2017, three California government entities — Marin and San Mateo Counties, along with the City of Imperial Beach — filed suit in California Superior Court against some of the world’s largest oil, gas, and coal companies, seeking compensation for the costs of adapting to climate change in their communities. These suits, which allege that the defendants’ greenhouse gas products are directly responsible for current and future physical impacts in their communities, especially related to sea level rise, seek both compensatory and punitive damages based on state causes of action related to public nuisance, strict liability — failure to warn and product design defect, negligence, and trespass. In September 2017, the cities of Oakland and San Francisco filed analogous lawsuits, although based solely on California public nuisance law.
Collectively, these suits take a different approach to climate change litigation, being based solely on state law claims, rather than on federal common law as in the “first generation” of previously unsuccessful suits such as Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410 (2011) (AEP) and Native Village of Kivalina v. ExxonMobile Corp., 696 F.3d 849 (9th Cir. 2012) (Kivalina). In both of these cases, the courts held that the Clean Air Act preempted federal common law in regards to carbon dioxide emissions (AEP) and damages caused by global warming (Kivalina). As a result of these rulings, these second generation suits sought to frame climate change issues as a matter of state law. However, in a surprise ruling on February 28, 2017 by the federal court judge currently overseeing the Oakland and San Francisco suits in response to the municipalities’ efforts to have the cases remanded to state court (the cases having previously been removed to federal court by the defendants), the availability of federal common law once again is on the table.
In support of its contention that federal common law might be the appropriate vehicle to address the merits of the Oakland and San Francisco suits, the court took a decidedly “big picture” view of climate change, noting that the plaintiffs’ nuisance claims address the “national and international geophysical phenomenon of global warming.” Order, pg. 3. Specifically, the court stated that:
[t]aking 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.
In this context, the court rejected the plaintiffs’ attempts to draw a distinction between the earlier generation of suits which sought to impose liability on greenhouse gas emitters, while the Oakland and San Francisco suits (as well as the earlier California suits) seek to hold greenhouse gas producers liable. Id, at 5-6. Again, the court stated that, “the transboundary problem of global warming raises exactly the sort of federal interests that necessitate a uniform solution.” Id. at 5.
The court also rejected the plaintiffs’ other principal argument in support of remand on similar grounds. The plaintiffs argued that even if their claims were similar to the interstate pollution claims put forward in AEP and Kivalina, the Clean Air Act would displace federal common law such that once it is displaced, state law should govern to the extent it is not displaced by federal statute. Id. at 6. The court rejected this argument for two reasons. First, the court noted that the Clean Air Act preempted the federal common law nuisance claims in AEP and Kivalina because the Act directly related to domestic emitters of greenhouse gasses, which was directly at issue. Id. at 7. The court distinguished the Oakland and San Francisco suits because not only do these suits attack domestic producers of greenhouse gasses, but also attack the defendants’ “behavior worldwide.” Id. Again, the court emphasized that the plaintiffs’ nuisance claims,
… depend on a global complex of geophysical cause and effect involving all nations of the planet … It necessarily involves the relationships between the United States and all other nations. Id. at 8.
It is very interesting to note that the court’s expansive global view of climate change is directly opposite the track being taken by the Trump administration, which is seeking to limit consideration of climate change impacts due to domestic releases of greenhouse gasses to only those occurring within the United States and not globally. Which view prevails, at least in the intermediate term, is an open question. Finally, whether this court’s view that federal common law is the proper remedy for climate change suits related to domestic producers survives could have an impact on the earlier California suits and also on a suit recently filed by New York City against greenhouse gas producers based on similar state nuisance principals.