After Setbacks, Calif. Governments Press Their Climate Suit Against Fossil Fuel Companies

A gas-powered generating station is seen in the San Fernando Valley on March 10, 2017 in Sun Valley, California.  (David McNew/Getty Images)

Three federal judges heard arguments in Pasadena Wednesday about whether major oil and gas companies are financially responsible for the damages caused by climate change.

In lively back-to-back hearings, the judges, from the 9th District Circuit Court, pushed with skepticism at both sides’ arguments.

San Francisco, Oakland, and a coalition of about a dozen other cities and counties want to hold the fossil fuel industry responsible for the remediation costs and property damage from increasingly severe wildfires, rising sea levels and intense storms that batter coastal communities.

The cities seek damages related to climate change from Chevron, ExxonMobil, Phillips 66 and major other oil and gas companies.

The lawsuits are reaching a critical juncture. After a string of losses in federal courts, the cities asked the federal panel Wednesday to allow them to argue their lawsuit in the California state courts.

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“If the panel agrees that the cases belong in state court, it would be the state judge, applying state laws, who decides whether we can proceed with this case to protect our residents, workers, and businesses from the costs and damage these fossil fuel companies knowingly imposed on our communities,”  San Francisco City Attorney Dennis Herrera and Oakland City Attorney Barbara Parker said in a written statement.

The fossil fuel companies are trying to move the cases into the federal courts with the aim of obtaining the ear of the conservative majority on the U.S.  Supreme Court.

“State tort law is not an appropriate vehicle—and state courts are not an appropriate forum—for regulating worldwide energy policy or punishing lawful, global commercial activity that is vital to every sector of the global economy,” lawyers for Chevron wrote in a legal brief.

The 9th Circuit panel heard arguments in two separate lawsuits.

Lawyers representing San Francisco and Oakland are trying to revive their lawsuit in state court after William Alsup, a judge for the Federal District Court in San Francisco, tossed it out.

“The law and precedent supporting our position is strong, and such a ruling would be consistent with orders issued by four other federal judges,” Herrera and Parker said in their statement.

As part of his deliberation, Alsup asked the cities to offer him  a primer in climate change science. The tutorial included a seminal 1992 paper published in the journal Nature that detailed rising levels of carbon dioxide in the atmosphere.

In a June opinion, the judge wrote that the “problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

The federal court has already remanded to state court the other case, brought by San Mateo, Santa Cruz and Marin counties, along with Richmond, Santa Cruz and other cities.

“It has been two years or more since our communities first filed these cases to hold fossil fuel companies accountable for the climate change-related damages they knowingly caused and the high costs our taxpayers are already incurring as a result,” the governments said in a written statement. “It is time for the defendants to be held accountable for their decades-long campaign of public deception about climate change and its consequences.”

Alex Katz, a spokesman for the Oakland city attorney’s office, said that the city does not know when the judges will decide on the case. He suggested it could take several months.