Decision could set up future conflict over jurisdiction

What’s the implication of federal judge William Alsup’s Feb. 27 decision that climate liability cases go to federal court?

Background: On Feb. 27, Judge William Alsup denied plaintiffs’ motion to remand San Francisco and Oakland climate liability cases back to state court. The decision came after a Feb. 8 hearing at the U.S. District Court for the Northern District of California in San Francisco. The judge rejected the cities’ argument that their claims arise under California public nuisance law, finding instead that federal common law applies in global warming cases. (Climate Liability News coverage)

What that means, according to CCI Coordinating Counsel Ken Adams:

Exxon and its co-defendants believed they would face greater liability risks if they had to defend in state court rather than in federal court. Not surprisingly, then, the co-defendants feel they have scored a victory by defeating the efforts of San Francisco and Oakland to transfer the cases back to state court, where they were filed initially.

But there is no good news for Exxon and its co-defendants in this recent decision, which ordered the cases proceed to trial in federal court. While Judge Alsup did not agree with the plaintiffs’ view — that the cases should be tried in state court — nor did he agree with the defendants’ view, which was that the cities have no right to sue in any court at all because Congress extinguished the right to bring such suits when it passed the Clean Air Act.

In fact, the judge specifically distinguished this case from prior cases that were dismissed on that ground:

“Here, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.” (p. 7)

Exxon and its co-defendants would like to believe that Judge Alsup will dismiss the case and not allow it to proceed to trial. That would mean the co-defendants are spared public disclosure of evidence illustrating their total indifference to the climate damage they knew their products would cause. Damage, it’s worth noting, that indeed occurred and that and the companies left for the public to deal with, while they heedlessly pursedcorporate profits for 50 years.

There is nothing in Judge Alsup’s decision to give sustenance to such wishful thinking. To the contrary, the judge says it is the role of the federal courts (not the legislature or the executive branch) to deal with disputes like this. And he seems to be preparing himself for that task. In a parallel order entered the same day, Judge Alsup scheduled a 5-hour “tutorial” on global warming and climate change, at which counsel for each side are invited to present experts describing the history of climate change and the best current scientific knowledge regarding global warming.

Exxon and its co-defendants moved the case from state court to federal court over the objection of San Francisco and Oakland. They urged Judge Alsup to deny plaintiffs’ motion to transfer the case back to state court. He ruled in their favor and is now moving the case forward toward trial in federal court. They got what they wanted; but they may be sorry they did. As the old saying goes, “Be careful what you ask for – you just might get it.”