A friend of the court brief has been filed by Attorneys for States of Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming.  They urge the federal Ninth District Court to dismiss the lawsuit against five major oil companies for claimed climate damages.  Previous posts discussed the scientific briefs against these lawsuits, and this post adds the legal reasons why these court actions are unreasonable.

An article in Forbes summarizes: As Boulder Sues, 15 States – Including Colorado – Oppose Global Warming Lawsuits

On April 19, Colorado Attorney General Cynthia Coffman joined 14 colleagues in a friend-of-the-court brief filed in the California litigation that finds fault with the idea of using public nuisance lawsuits to address climate change. The text of the pleading is AMICUS BRIEF OF INDIANA AND FOURTEEN OTHER STATES IN SUPPORT OF DISMISSAL  Excerpts in italics below from Forbes with my bolds.

“Plaintiffs’ theory of liability involves nothing more specific than promoting the use of fossil fuels,” the brief says.

“As utility owners, power plant operators and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.”

For now, those political subdivisions are plaintiffs – and the newest are the city and county of Boulder and San Miguel County. Their lawsuit was filed April 17 by two environmental firms and a Denver environmental/personal injury lawyer.

According to the Boulder County website, private attorneys will charge up to a 20% contingency fee. The City of Boulder has not yet produced a copy of its contract with these attorneys. Legal Newsline requested it April 18.

The City of Boulder was tight-lipped in the months leading up to the lawsuit, saying only that the City Council had approved a plan to hire a Washington, D.C., firm on a pro bono basis.

Like the California cases, Boulder’s makes a claim under the public nuisance theory. Climate change has caused a nuisance in the Boulder area, and the plaintiffs have to mitigate its impacts, the suit alleges.
The states, led by Indiana, say that theory isn’t good enough. Federal judges should not be asked to establish emissions policy, the brief says.

“But the questions of global climate change and its effects – and the proper balance of regulatory and commercial activity – are political questions not suited for resolution by any court,” the states say.
“Indeed, such judicial resolution would trample Congress’ carefully calibrated process of cooperative federalism where States work in tandem with EPA to administer the federal Clean Air Act.”

Background Is Global Warming A Public Nuisance?

Footnotes:  Notable quotes in italics from the State Attorneys’ brief (with my bolds):

To permit federal adjudication of claims for abatement fund remedies would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials. Federal courts should not use public nuisance theories to confound state and federal political branches’ legislative and administrative processes by establishing emissions policy (or, as is more likely, multiple conflicting emissions policies) on a piecemeal, ad hoc, case-bycase basis under the aegis of federal common law.

As utility owners, power plant operators, and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.

Similarly, they request relief in the form of an “abatement fund remedy” rather than outright abatement, but the Ninth Circuit has already said that the remedy requested is irrelevant to the displacement issue. Ultimately, neither stratagem changes the essential nature of Plaintiffs’ claim or of the liability that they are asking the court to impose—liability that could serve as the predicate for myriad remedies in future cases or even in this one.

Plaintiffs are asking the court to order Defendants to pay to build sea walls, raise the elevation of low-lying property and buildings, and construct other infrastructure projects necessary to combat the effects of global climate change for the major cities of Oakland and San Francisco. Such a remedy could cost several billion dollars and seriously impact Defendants’ ability to provide energy to the rest of the country.

As the weight of authority demonstrates, Plaintiffs claims in this case may be styled as torts, but they are in substance political, and thus nonjusticiable.

To determine liability, the court would need to determine that plaintiffs have a “right” to the climate—in all of its infinite variations—as it stood at some unspecified time in the past, then find not only that this idealized climate has changed, but that Defendants caused that change through “unreasonable” action that deprived Plaintiffs of their right to the idealized climate.

Plaintiffs’ desired remedies are nothing more than a form of regulatory enforcement and creation of policy through the use of judicial remedies. Plaintiffs seek to inject their political and policy opinions into the national regulatory scheme of energy production, promotion, and use. Yet all States play a critical regulatory role within their borders, and Congress has leveraged and augmented that authority by way of the Clean Air Act, a cooperative federalist program designed to permit each State to achieve its optimal balance of regulation and commercial activity. Cooperative federalism in the environmental and energy production policy arena underscores the political nature of this case.

Thus, through the cooperative federalism model, States use their political bodies to secure environmental benefits for their citizens without sacrificing their livelihoods, and each does so in a different fashion—a natural result of the social, political, environmental, and economic diversity that exists among States. A plan to modify greenhouse gas emissions that is acceptable to California or Vermont may be unacceptable to Indiana, Georgia, or Texas, for example.

Plaintiffs are worried not about national climate change, but about global climate change. And, indeed, the global nature of concerns over anthropogenic climate change has spawned a variety of treaties and other international initiatives aimed at addressing air emissions. This activity has been multifaceted, balancing a variety of economic, social, geographic, and political factors and emphasizing multiparty action rather than arbitrarily focusing on a single entity or small group of entities.

The past two decades have thus seen four Presidencies with widely divergent views of what the United States’ foreign policy on climate change and greenhouse gas emissions should be. These shifts in direction further demonstrate the political nature of environmental and fossil fuel regulation and reaffirm the need for such decisions to be the subject of political debate and accountability.

Focusing on energy production rather than emissions does not make this case any less inherently political. If anything, it underscores the political nature of the global climate change problem by casting a spotlight on yet more political choices that bear on the issue. In some instances States themselves promote the very energy production and marketing targeted in this case. For example, the California State Oil and Gas Supervisor is charged with “encourag[ing] the wise development of oil and gas resources” and “permit[ing] the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons[.]” Cal. Pub. Res. Code §§ 3004, 3106(b).

California cannot evade the application of the Commerce Clause by using common law rather than state statutory law to regulate commerce occurring outside its borders. The constitutional restrictions on California’s ability to regulate out-of-state commerce “reflect the Constitution’s special concern both with the maintenance of a national economic union unfettered by state imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.” Healy v. Beer Inst., Inc., 491 U.S. 324, 335–36 (1989).

At the most basic level, such remedies represent an effort by one state to occupy the field of environmental and energy production regulation across the nation, and to do so by superseding sound, reasonable, and longstanding standards adopted by other states in a system of cooperative federalism and by the federal government. Indeed, even if the Plaintiffs’ desired remedies do not directly conflict with other states’ existing laws and regulatory framework, it nonetheless would “arbitrarily . . . exalt the public policy of one state over that of another” in violation of the Commerce Clause.

By asking a single federal judge to impose energy production penalties on defendant companies, each of which is presumably compliant with the regulations of each state in which it operates, Plaintiffs are attempting to export their preferred environmental policies and their corresponding economic effects to other states. Allowing them to do so would be detrimental to state innovation and regional approaches that have prevailed through the political branches of government to date. 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. This is yet another reason to reject Plaintiffs’ novel theory of liability.