Federal judge William Alsup was straightforward Monday in ruling against Oakland and San Francisco in their lawsuit to force five big oil companies to pay for the cost of climate change.
Science is on their side, the San Francisco district court jurist ruled — “This order accepts the science behind global warming” — but the law is not. The problem, he concluded, lies beyond the competence of “a district judge or jury in a public nuisance case.” Rather, it’s up to Congress and the president.
But for all its bluntness, Alsup’s order merely injects a large dose of confusion into the law on climate change. That’s because it runs counter to a ruling in a similar sheaf of cases by another San Francisco federal judge — Vincent Chhabria, who ruled in March that the proper venue for lawsuits brought by Marin and San Mateo counties and the city of Imperial Beach against 29 oil companies is state court. The Oakland/San Francisco lawsuit named only five: BP, Chevron, Exxon Mobil, ConocoPhillips and Royal Dutch Shell.
The city and county of Santa Cruz and the city of Richmond joined that case after it was filed. Chhabria rejected the attempt by the oil companies to move the lawsuit into federal court.
“These lawsuits are on dramatically different tracks right now,” says Sean Hecht, an environmental law expert at UCLA.
Both lawsuits were based on the doctrine of “public nuisance.” The plaintiffs contend that the oil industry knew that its products would contribute to global warming, but continued to market them anyway, and even suppressed scientific evidence of the harm. The lawsuits seek compensation for the rise in the sea level that results from global warming and will cost coastal communities dearly.
“Public nuisance” is an old common-law doctrine, but its appearance in the climate change cases is novel. More frequently, it’s mustered against landlords who allow drug dens on their premises or factories with noxious emissions. In California, the climate-change plaintiffs have taken heart from a California state appeals court decision in November holding three paint companies responsible for the dangers of lead paint used in residences until 1951. At the federal level, Hecht says, public nuisance doctrine is not as well-established.
Judge Alsup took the scientific issues underlying the Oakland/San Francisco case seriously, presiding over a one-day standing-room-only tutorial by the parties’ experts in March. His ruling included more than five pages of analysis of the history of climate change science.
But ultimately, he concluded, “the issue is not over science. … The issue is a legal one.” Federal nuisance law requires the public harm alleged against the defendants to be balanced against the positive effects of their behavior. Those positives are considerable, he wrote.
“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible.” Under the circumstances, it’s impossible to say that “the sale of fossil fuels was unreasonable,” a necessary finding for a public nuisance.
“There are sound reasons why the worldwide problem of global warming should be determined by our political branches, not by our judiciary,” Alsup wrote.
Alsup’s ruling won’t have any direct impact on the cases Chhabria returned to state court. Victor Sher, an attorney representing the municipalities in those cases, termed Alsup’s ruling “disappointing,” but said it would have “virtually no bearing on the lawsuits brought by our six clients, which are moving forward under a variety of state common law claims.”
The municipalities’ claims are somewhat broader than those of Oakland and San Francisco, and include allegations that the industry engaged in a “pseudo-scientific” campaign to suppress knowledge of their impact on climate change.