Should climate policy be decided here?

A clearly skeptical federal judge questioned the basic premise behind New York City’s lawsuit against five of the world’s biggest oil companies over climate change on Wednesday, asking whether the city was simply rehashing failed earlier attempts to sue companies over their emissions.

New York, represented by private lawyers who hope to collect a percentage of whatever they win, says it’s suing BP, ExxonMobil, Chevron, ConocoPhillips and Royal Dutch Shell for creating a “public nuisance” by producing and selling oil and natural gas. But U.S. District Judge John Keenan didn’t seem to be buying it.

During a morning hearing over the oil companies’ motions to dismiss, Judge Keenan referred repeatedly to the frequent use of the word “emissions” in the city’s complaint – including four times in a single sentence – which could doom the lawsuit under a U.S. Supreme Court decision that held only the Environmental Protection Agency can regulate carbon dioxide emissions.

“This is an emissions case,” the judge told attorney Matt Pawa of Hagens Berman soon after Pawa launched into his arguments against dismissing the lawsuit. “Aren’t you trying to dress up a wolf in sheep’s clothing here?”

Pawa knows well the risk of losing this argument. He was also the lawyer behind Kivalina v. ExxonMobil, a climate-change lawsuit that was dismissed by the U.S. Court of Appeals for the Ninth Circuit in 2012, for the same reason that the Supreme Court rejected similar litigation by several states against the utility industry in the 2011 decision AEP v. Connecticut.

Judge Keenan also asked whether the city was approaching the case with unclean hands, since it burns a lot of the fossil fuels it says constitute a public nuisance. He asked Pawa how many cars and trucks the city owns, and in an awkward moment, asked whether the city invests in fossil fuel producers.

After huddling with city lawyers, Pawa said he didn’t know. The answer: The city plans to divest.

“I don’t think it’s hard to take judicial notice of the fact the city police department has a lot of cars, that the firehouse has trucks,” the judge said. “Isn’t the plaintiff using the product that is the subject of this lawsuit?”

Today’s hearing illustrated the uphill battle the City of New York faces in trying to win billions of dollars from the oil industry to pay for the expected costs of global warming. Pawa and Hagens Berman also represent San Francisco, Oakland and several other California cities, all of which are struggling to get around precedent rejecting “public nuisance” lawsuits over legal products whose harms are several steps removed from the companies that produce them.

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