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Ninth Circuit Hears Arguments on Key Climate Change Litigation Appeals

SongBy Leah M. Song

On Wednesday, February 5, 2020, the Ninth Circuit heard oral arguments in two cases involving lawsuits brought by California cities and counties against the oil and gas industry for contributing to increased greenhouse gas emissions and climate change.

As noted in Jenner & Block’s previous blog post, these cases are part of an emerging trend of lawsuits filed by U.S. states and municipalities against the oil and gas industry. In these cases, plaintiff cities or states will often bring suit against a large number of oil and gas companies as members of the collective industry. These claims are usually brought in state court, where the plaintiffs can take advantage of potentially favorable state common law. Using this strategy, plaintiffs have asserted claims against the fossil-fuel industry under state law theories such as nuisance, failure to warn of the known impacts of climate change, and unjust enrichment. Of course, as a counter to this strategy and in hopes of demonstrating preemption under the Clean Air Act, defendants will often look to remove climate change cases to federal court.

In the first case, County of San Mateo et al. v. Chevron, et al., the oil companies are appealing a California federal district judge’s ruling granting the municipalities’ motion to remand their claims back to state court. In the second, City of Oakland, et al. v. BP PLC, et al., the municipalities are appealing a different district judge’s ruling denying the municipalities’ motion to remand and dismissing the case on the grounds that it raised a “political question” best addressed by the legislature as opposed to the judicial branch.

In a three-judge panel, Judges Sandra S. Ikuta, Morgan Christen and Kenneth K. Lee heard arguments in both cases. Despite the differences in the lower court decisions being appealed, there’s clear overlap in the climate change litigation and the essential underlying question of whether climate-related tort suits belong in state or federal court.

In the San Mateo arguments, Judges Sandra Ikuta and Morgan Christen strongly suggested the court’s precedent requires them to limit their consideration to one issue concerning removal to federal court, referred to as “, .”

In the Oakland arguments, the judges focused on procedural issues, including that the lower court went beyond the jurisdiction issue and dismissed the case. The Judges questioned whether they should address the district court’s dismissal of the case or consider other grounds for removal to federal court, such as subject matter jurisdiction and personal jurisdiction, as well as the impacts, if any, of the cities’ amended complaint on the case.

The fossil fuel companies explained to the court that, “This is a federal case because of the interstate nature of the case.” “But their specific claim is the sea level is rising and causing them damage within their jurisdiction,” Judge Ikuta said. The companies replied “That’s correct. They’re claiming they suffered harm in California, but based on this global activity.”

The outcome of these appeals could provide an early indication as to the potential viability of climate change litigation brought by U.S. states and municipalities against industries with historically high levels of greenhouse gas emissions. The rulings are expected to impact the national debate over court jurisdiction on the matter, which may ultimately prompt the Supreme Court to weigh in on the issue. Jenner & Block’s Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.