My latest Legal Newsline story on Forbes.com:
The cities of Oakland and San Francisco have replaced the private lawyers representing them in climate change litigation as a series of lawsuits against ExxonMobil, Shell and other oil companies head toward what could be their final challenges in appeals courts on either coast.
The U.S. Supreme Court is watching closely, meanwhile, having intervened repeatedly in an Oregon case by lawyers representing children who claim they have been harmed by federal inaction on climate policy.
In a possible sign of disagreement over their thus-far unsuccessful legal strategy, Oakland and San Francisco hired the law firm of Sher Edling to represent them as they appeal a trial court’s dismissal of their case in July. The cities previously were represented by the Seattle law firm of Hagens Berman and its partner Matt Pawa, who pioneered the concept of climate litigation after earlier using similar legal strategies to sue over groundwater pollution caused by the gasoline additive MTBE.
Oakland and San Francisco have asked the U.S. Court of Appeals for the Ninth Circuit in San Francisco to reverse the dismissal of their case at the same time as the court considers an appeal of another federal judge’s ruling sending lawsuits by San Mateo and several other cities back to state court in California. The Ninth Circuit also has agreed to hear a rare interlocutory appeal of an Oregon judge’s order allowing the children’s lawsuit, Juliana v. U.S., to proceed to trial despite arguments it would inject the judicial branch into climate policymaking properly left to the elective branches of government.
On the East Coast, New York City has appealed the dismissal of its climate lawsuit against the oil industry to the Second Circuit. The prospect of conflicting appeals-court decisions in these high-profile cases raises the odds climate litigation eventually will arrive before the U.S. Supreme Court – but with a twist. The Ninth Circuit, generally seen as a liberal bench, appears to have ruled out climate lawsuits against the oil industry with prior decisions dismissing lawsuits by Alaskan villagers and the State of California.
The Second Circuit, which has a more pro-business reputation, ruled in favor of the plaintiffs and against the utility industry in Connecticut v. AEP, which was later overturned by the Supreme Court in a landmark decision holding corporations can’t be sued over greenhouse gas emissions.
The latest round of climate lawsuits against the oil industry – all involving private attorneys hoping to earn contingency fees if they win – seek to get around the AEP decision by suing not over greenhouse gas emissions, but marketing tactics they say led to those emissions. That strategy failed completely before U.S. District Judge William Alsup in California and Judge John Keenan in New York City, who both agreed with the defendant companies that any remedy to global warming lies with the Environmental Protection Agency, not the courts.
Undeterred, the plaintiffs hope to move their cases back to presumably more favorable state courts under a ruling by U.S. District Judge Vince Chhabria, who rejected defense arguments any climate claims are governed by federal law. Defense attorneys point to the split between Judges Chhabria and Alsup as one of the main dangers of continued climate litigation. If two federal judges seated in the same district can disagree on fundamental questions of jurisdiction and justiciability, they say, what will happen if companies are forced to defend themselves in hundreds of state courts around the country?
The switch in law firms by Oakland and San Francisco also highlights the high stakes for private lawyers in these cases. Most are operating under contracts that award them 20% or more of any judgment or settlement, the type of contingency-fee agreement that yielded billions of dollars in fees in tobacco litigation and hundreds of millions more in lawsuits by government entities against drug companies and polluters.
Pawa and Sher Edling partner Vic Sher split bitterly over more than $30 million in fees after winning large settlements and judgments in the MTBE litigation. Pawa brought in Sher at the prodding of the New Hampshire attorney general after Pawa signed up the state as a plaintiff and the two agreed to a 22%-78% fee split.
But after winning several settlements that had brought his firm some $27 million in fees, Sher balked at paying Pawa his share. The case went to arbitration, where Pawa was awarded more than $5 million in fees plus his split of the fees ultimately generated by a lawsuit against ExxonMobil that resulted in a $236 million judgment in 2015. It is the millions of dollars in fees from successful cases that the private lawyers use to fund their current litigation on behalf of cities and states.
Pawa went on to join Hagens Berman – where partners earned tens of millions of dollars in fees from tobacco litigation – and recruited New York City, King County in Washington and other cities as clients. Sher Edling is pressing suits on behalf of the state of Rhode Island, Baltimore and a group of Pacific Coast fishermen.
All of the lawsuits present a basic question to the courts: Can they deliver a remedy to plaintiffs who claim global warming is harming them? Defendants, including the Trump administration, say no. Climate change is a global problem with millions of contributors, including the very cities that are suing over it. They burn fossil fuels in large amounts, after all, at the same time as they blame the oil companies supplying those fuels for global warming-related costs.
Congress and the executive branch also oversee comprehensive regulation of the fossil-fuel industry, including laws designed to encourage oil and gas production and environmental regulations designed to control pollution. Rejecting these arguments, U.S. District Judge Ann Aiken, a former Oregon legislative attorney and Bill Clinton appointee, ruled in Juliana v. U.S. that her role was “to determine what emissions level would be sufficient” to redress the plaintiffs’ claimed injuries, likening herself to a judge asked to determine a constitutional level of prison occupancy.
Former U.S. Supreme Court Justice Anthony Kennedy questioned Judge Aiken’s reasoning in a July order, saying “the breadth of respondents’ claims is striking …and the justiciability of those claims presents substantial grounds for difference of opinion. The District Court should take these concerns into account in assessing the burdens of discovery and trial.”
Aikens ignored Kennedy’s advice and set an October trial date, but the Supreme Court stepped in again, staying the trial. In a Nov. 2 order a majority on the court refused to grant the Trump administration’s mandamus request to dismiss the suit, but reminded Judge Aiken and the Ninth Circuit of Kennedy’s prior advice. On Nov. 21, Judge Aiken acquiesced and granted the government’s request for an interlocutory appeal of her ruling allowing the case to proceed.
Remaining cases and their status include:
Boulder, Colorado: A lawsuit by the City of Boulder, its surrounding county and San Miguel County against Exxon and Suncor are on hold as a federal court considers their request to remand the cases to state court.
King County: Case is stayed pending resolution of climate lawsuits now before the Ninth Circuit. The State of Colorado joined a brief by 10 other states arguing for dismissal, saying “the list of potential defendants is limitless,” including utility owners, power plant operators and municipal vehicle fleets. “King County is asking the court to order defendants to fund an abatement program to build infrastructure and to finance programs to combat the effects of global climate change for a single county.”
Rhode Island: The state has filed to remand its lawsuit from federal court back to state court, despite a highly unfavorable ruling by its own state Supreme Court in earlier litigation over lead paint.
Baltimore: The city, represented by Sher Edling, sued 26 companies for “over-promotion, over-marketing and deliberate campaigns of misinformation” involving fossil fuels and climate change. Now seeking remand to state court.
Pacific Coast Federation of Fishermen’s Associations: Filed by Sher Edling in state court in San Francisco on Nov. 14; likely to be removed to federal court.
New York: The New York attorney general sued ExxonMobil for allegedly misleading statements about how it accounts for costs associated with global warming. A New York judge has allowed the case to proceed to discovery, albeit with some criticism of the state, and rejected New York’s attempt to move the case to another judge.