Washington, DC —
Ken Adams, Coordinating Counsel, Center for Climate Integrity
“Apparently 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 the lawsuits filed by San Francisco and Oakland to hold them responsible for their fair share of the damages caused by climate change attributable to their products.
Not surprisingly they 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 do-defendants in Judge Alsup’s recent decision, ordering that the cases should 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, neither did he agree with the defendants’ view 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 will not allow it to proceed to trial – that they will not have to face public disclosure of the evidence of their total indifference to the climate damage they knew their products would cause, as they heedlessly pursued corporate profits for 50 years leaving it to the public to deal with the damages left in their wake.
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.’ ”