A group of 15 Republican states attorneys general filed an amicus brief in a lawsuit brought by San Francisco and Oakland against major oil companies, asking a federal court to dismiss the case.
By using the courts to punish oil companies, the AGs, led by Indiana Attorney General Curtis Hill’s office, argue California cities “are attempting to export their preferred environmental policies and their corresponding economic effects to other states.”
“California’s attempt to regulate out-of-state production of fossil fuels and by suing producers with common law cause of action implicates the constitutional doctrine against extraterritorial regulation,” the AGs argue in their amicus brief filed Thursday. “This is yet another reason to reject Plaintiffs’ novel theory of liability.”
San Francisco and Oakland are two of eight California cities suing fossil fuel companies for damages allegedly wrought by man-made global warming. New York City; Boulder, Colo.; and two Colorado counties are also suing energy companies for “knowingly” causing global warming.
The suits, largely handled by trial lawyers on a contingency fee basis, rest on public nuisance and trespassing claims, which have sometimes been applied to pollution issues. However, legal efforts have questioned the logic of applying nuisance claims to a global phenomenon, like global warming.
Lawsuits against fossil fuels companies are also problematic for an obvious reason — their customers are the major source of emissions, not the companies themselves.
“Indeed, these public nuisance lawsuits are especially dubious, given that the oil companies did not by their sales emit any carbon dioxide into the atmosphere,” New York University law professor Richard Epstein noted in January.
“The dangerous releases came from many different parties, both private and public, including the municipalities bringing these lawsuits,” Epstein wrote.
Those backing climate lawsuits say fossil fuel companies need to be held accountable for damages wrought by global warming, which they’ve allegedly known would occur for decades.
“Courts have repeatedly ruled that manufacturers are liable for the damages their products cause, especially when they know in advance that their products, if used as intended, will cause that harm,” reads a blog post by the Niskanen Center, a D.C. think tank, which is representing Boulder and two Colorado counties.
However, U.S. District Court Judge William Alsup dismissed accusations brought by California cities that fossil fuel companies had engaged in a conspiracy to cover up global warming, at a March hearing.
The 15 states argue global warming is a question the courts are not equipped to consider. These are policy, not legal, questions, states argue.
“[S]uch judicial resolution would trample Congress’s carefully-calibrated process of cooperative federalism where States work in tandem with EPA to administer the federal Clean Air Act,” reads their amicus brief.
“And even were that not so, the Supreme Court has already said that the Clean Air Act and related EPA regulations have displaced the federal common law” in a 2011 case,” the attorneys general wrote.
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