New York City wants to shift the burden of protecting the city back onto the companies it says have overwhelmingly caused the climate crisis. Photo credit: Andrew Burton/Getty Images Litigation | March 27, 2019
By Karen Savage
In its latest brief trying to keep alive its climate liability suit against five major oil companies, New York City reiterated that its lawsuit is about forcing them to pay to protect the city and its residents from the impacts of climate change, not about regulating greenhouse gas emissions.
“Emissions are part of the causal chain by which defendants’ intentional conduct results in severe harm to the city, but the city’s claims will not require a court to set an acceptable level of emissions either to assess liability or to provide a remedy,” the city wrote in the brief, filed Monday in the Second Circuit Court of Appeals.
New York is appealing the cases’s dismissal by U.S. District Judge John Keenan last June, when Keenan ruled that the executive and legislative branches, not the courts, are the proper forum to address harms resulting from climate change and greenhouse gas pollution. He said the city’s claims are covered under federal law because they involve greenhouse gas emissions that cross state lines, but that the Clean Air Act takes legal precedence because it governs emissions.
New York filed its lawsuit suit against BP, ConocoPhillips, Chevron, ExxonMobil and Royal Dutch Shell in January 2018, claiming public nuisance, private nuisance and trespass and seeking to force the oil giants to help pay for infrastructure improvements needed to protect its more than 8.5 million residents from climate impacts.
The city appealed Keenan’s dismissal in November, contending that Keenan misunderstood its allegations and erred when he concluded that various federal law doctrines barred its claims. It maintains that its claims aren’t displaced by the Clean Air Act and the suit should not have been dismissed by the lower court.
In their opening appellate brief, the defendants—the five largest investor-owned fossil fuel companies as measured by their contributions to global warming—avoided the question of liability, emphasizing the enormity of global warming and consumers’ role in the burning of fossil fuels.
The oil giants also contend that if New York were awarded damages, the court would need to consider not only damages in this suit, “but also the cost of compensating every other plaintiff that has brought or could bring” similar climate liability suits. The defendants said if that were to happen, court-ordered damages would act as an injunction by putting them out of business.
The city said such a determination would not put the oil companies out of business, but would shift the burden of protecting the city back onto the companies it says have overwhelmingly caused the crisis.
“This remarkable claim is unsupported, speculative, and more than a little improbable given the companies’ massive profitability,” the city said, adding that the issue should not be resolved in a motion to dismiss.
The city said the defendants, which together account for 11 percent of all carbon and methane from industrial sources, have not only harmed the city, but have also undertaken “extraordinary efforts to deceive the public about the climate impacts of fossil fuels and to promote consumption at levels they knew were harmful.”
“No one has done more than defendants to exacerbate the harm or to prevent others from learning of the gravity of the threat,” the city said, adding that the oil companies were well aware of each other’s actions and at times worked in close coordination to deceive the public.
“Rather than mitigate the harm, defendants sought to protect their own interest, spending millions of dollars leading a public-relations strategy for the fossil-fuel industry to discredit the scientific consensus on global warming, downplay the risks of climate change, and portray their products as environmentally responsible.”