Judge Dismisses Climate Change Lawsuit

by Gary Baise: Attorney General Curtis Hill of Indiana and 14 other states helped dismiss a climate change lawsuit brought by the cities of Oakland and San Francisco, Calif. On June 26 a federal judge dismissed a global warming lawsuit which asserted climate change was caused by numerous oil companies and declared the cities failed to state a legal claim.

Hill and other Attorneys General argued that the cities were attempting to have the courts determine how to control the emissions of carbon dioxide from fossil fuels.

Hill argued, “Imposing such financial consequences on business activity contravenes Congress’ exclusive power to regulate interstate and foreign commerce. Plaintiffs’ objections to fossil fuel use are based in public policy, not law, and are thus not appropriate for judicial resolution. [Cities are suing companies for] nothing more specific than promoting the use of fossil fuels.”

Dr. Tim Huelskamp, president of The Heartland Institute, has indicated he is deeply concerned about cities being able to sue oil companies for nothing more than promoting their product. “These lawsuits by the Left are nothing more than bald faced attempts to shake down legitimate American businesses,” says Huelskamp.

The history of carbon dioxide
The court’s opinion is interesting in that it reviews the history of carbon dioxide. The court states that in 1896 an Irish scientist determined that carbon dioxide absorbed heat. In 1938 another scientist demonstrated there was a slight rise in temperature on the planet from 1910-1930. It was not until 1988 that a United Nations Intergovernmental panel started an assessment and issued a report in 1990 which suggested that man-made emissions were creating some interference with the climate.

The court is convinced that human influence has been the dominant cause of observed warming in the 20th century. The court points out the sea level has risen approximately 7-8 inches since 1900. The court did not point out other science which shows little or no sea level change in certain parts of the world and that, in some places, the land is actually rising.

Defendants in this case, Chevron, Exxon, BP, Shell, and ConocoPhillips, are the largest investor-owned producers of fossil fuels in the world. Oakland and San Francisco claim these companies were responsible for creating a public nuisance because both cities will be subject to sea level rise and as a result will have to erect sea walls to keep from being submerged by these waters.

The judge points out “The scope of plaintiffs’ theory is breathtaking.” The judge went on to say, “To be held liable for a public nuisance, a defendant’s interference with a public right can either be intentional, or unintentional and otherwise actionable under principles controlling liability for negligence, reckless, or abnormally dangerous activities.”

The court said fossil fuels have continued to cause global warming. There is significant disagreement with this statement; however, the court stated against this negative we must weigh a positive. It stated “[o]ur industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible.”

Deeply troubled
The court is deeply troubled by the cities asking for billions of dollars to abate their own localized effects. The opinion makes it clear that oil company conduct is lawful in every nation, yet the cities of Oakland and San Francisco would have a single jury impose a decision that neither Congress or a President has ever sought.

The court wisely concludes that the question presented by Oakland and San Francisco is best left to Congress. The court finally states “…regulation of the worldwide problem should be determined by our political branches, not by our judiciary.”

The Attorney General of Texas put it best in saying the lawsuit against oil companies “…was nothing more than mayors grandstanding for their political base while attempting to set national policy.”
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Gary Baise, a principal at OFW Law, specializes in Clean Water Act (CWA), Clean Air Act (CAA), National Environmental Policy Act (NEPA), Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and Solid Waste Disposal Act (SWDA) litigation as well as agricultural corporate governance issues. He was the first Chief of Staff to the first US Environmental Protection Agency (EPA) Administrator and subsequently became director of the EPA's Office of Legislation. He served as executive assistant to the Acting Director of the Federal Bureau of Investigation, Associate Deputy Attorney General, and Acting Deputy Attorney General in the US Department of Justice. Article first shared by Farm Futures.

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