Like the proverbial acid relentlessly burning its way through materials in which it comes in contact, the relentless reasoning underlying the 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) climate lawsuits has claimed another victim.
After taking out the lawsuits filed by the cities of San Francisco and Oakland earlier this summer (Order), Kivalina and AEP now have been used to eliminate the climate change suit filed by the City of New York.
This dismissal brings to an end, at least temporarily, three of the fourteen second-generation climate change lawsuits filed by various cities and counties across the country seeking compensation from some of the world’s largest energy producers for the costs of adapting to climate change allegedly caused in part by these companies’ sale of fossil fuels.
The New York suit, like the San Francisco and Oakland suits, had sought to frame the climate change issue in a manner that avoided the fate suffered by the plaintiffs in the AEP and Kivalina first generation of climate change lawsuits. Specifically, while plaintiffs in AEP and Kivalina had sought a remedy based on the defendants’ emissions of carbon dioxide, the San Francisco, Oakland, and New York plaintiffs, in contrast, focused on the defendant energy companies’production of fossil fuels. Nevertheless, despite the novel approach, all three suits fell victim to the same reasoning that governed the outcomes in the AEP and Kivalina suits – preemption.
Initially, the court addressed New York’s assertion that federal common law did not govern its suit, rejecting its argument that because defendants’ liability is based on their production and sale of fossil fuels, and not their direct emissions of greenhouse gasses, federal common law did not apply. Similar to the court handling the San Francisco and Oakland suits, the New York court was not “fooled,” stating, “regardless of the manner in which the City frames its claims …, the amended complaint makes clear that the City is seeking damages for global-warming related injuries resulting from greenhouse gas emissions, and not only the production of Defendants’ fossil fuels.” New York Dismissal Order (Order), pg. 12.
Once federal common law was firmly on the scene, Kivalina and AEP could work their magic, and New York’s suit was doomed. In a rather no-win scenario, after finding federal common law applied, the court then stated, “[t]o the extent that the City brings nuisance and trespass claims against Defendants for domestic greenhouse gas emissions, the Clean Air Act displaces such federal common law claims under [AEP] and [Kivalina]” Id. pg. 13-14. Given the court already had decided that New York sought to hold defendant companies liable for their greenhouse gas emissions, which was the exact issue in Kivalina and AEP, the outcome was inevitable.
In addition to Clean Air Act displacement, the court also rejected any potential state law claims, noting, “the City has not sued under New York law for claims related to the production of fossil fuels in New York,” but rather “for damages caused by global greenhouse gas emissions resulting from the combustion of Defendants’ fossil fuels.” Order, pg. 19. Given the “interstate nature” of New York’s claims, the court claimed, “it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution.” Id.
In addition to preemption due to the interstate nature of the claims, the court also rejected New York’s claims due to their international nature. In this vein, the court reasoned that to the extent “the City seeks to hold Defendants liable for the emissions that result from their worldwide production, marketing, and sale of fossil fuels,” “the City’s claims are barred by the presumption against extraterritoriality and the need for judicial caution in the face of ‘serious foreign policy consequences.’” Id. pg. 20-21. This theme also was employed by the dismissing court in the San Francisco and Oakland suits, which decided that the claims brought by these cities, “are foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” The New York court summarizes this reasoning as follows:
Climate change is a fact of life, as it is not contested by Defendants. But the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.
The reluctance of both courts to become involved in climate change issues begs the following question: why? The statements by both courts are presented without further comment as if intrinsically obvious. These courts’ reliance on the Executive and Legislative branches to provide the sole remedy, however, essentially pushes the issue back to a federal government that shows very little interest in addressing climate change, potentially abdicating necessary court intervention.