City of New York v. BP p.l.c.

The federal district court for the Southern District of New York dismissed New York City’s lawsuit seeking to hold oil and gas companies liable for climate change harms. The court said federal common law governed the City’s claims because the claims were “ultimately based on the ‘transboundary’ emission of greenhouse gas emissions,” and require a uniform standard of decision. The court further concluded that the Clean Air Act displaced any federal common law claims. The court said Congress had “expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.” The court also rejected the City’s argument that if the Clean Air Act displaced their federal common laws claims, state law claims should become available. The court said such a result would be “illogical.” The court noted that the Clean Air Act regulates only domestic emissions but ruled that “to the extent the City seeks to hold Defendants liable for damages stemming from foreign greenhouse gas emissions, the City’s claims are barred by presumption against extraterritoriality and the need for judicial caution in the face of ‘serious foreign policy consequences.’” The court said litigating an action for injuries from foreign greenhouse gas emissions in federal court would “severely infringe” upon matters “within the purview of the political branches.”

On June 1, the Niskanen Center, a think tank “with a strong interest in protecting Americans property rights,” sought to file an amicus brief in support of the City. The brief disputed the defendants’ argument that applying state common law to their actions would violate a federal interest in uniform regulation of their conduct.

Fifteen states filed an amicus brief in support of the motion to dismiss. They argued that the claims raised nonjusticiable political questions, jeopardized the U.S.’s system of cooperative federalism, and threatened extraterritorial regulation. The states also argued that federal statutes had displaced federal common law.

On May 4, 2018, the parties completed the briefing on motions by the three U.S.-based fossil fuel company defendants to dismiss New York City’s climate change nuisance and trespass lawsuit. Two of the U.S.-based companies, ConocoPhillips and Exxon Mobil Corporation, also raised personal jurisdiction issues in separate motions. The court deferred addressing these issues until after resolution of the defendants’ arguments that the court lacks subject matter jurisdiction and that the amended complaint fails to state a claim. The court also allowed the two foreign-based defendants to defer responding to the complaint until after these issues are resolved. The court will hear oral argument on non-personal jurisdiction issues on June 13, 2018.

In a separate memorandum of law responding to ConocoPhillips’ argument that proximate causation principles barred liability, the City argued that basic tort law principles provided for individual tortfeasor liability where multiple tortfeasors have contributed to an indivisible harm and that the defendant companies could be held liable for the foreseeable consequences of their production and marketing of fossil fuels. The City distinguished its case from the gun and tobacco litigation cases cited by ConocoPhillips.

New York City responded to fossil fuel companies' motion to dismiss its climate change lawsuit by arguing that it had stated viable state law claims, that federal doctrines did not bar the claims, that the claims were justiciable, that the City had standing, that federal common law did not displace state law, and that, in any event, the City had pleaded viable federal common law claims that had not been displaced by the Clean Air Act. The City said the defendants’ assertion that climate change tort litigation would intrude on federal legislative and executive authorities had been rejected by the Second Circuit in Connecticut v. American Electric Power Corp. and that the defendants’ “overbroad” foreign powers argument would “invalidate a multitude of state laws on climate change.” The City also contended that neither the Clean Air Act nor other federal statutes conflicted with its claims.

In support of their motion to dismiss, the U.S.-based defendants argued, among other things, that New York’s claims, though labeled state law claims, actually arose under federal common law and that Congress displaced such global warming-based federal common law claims. Alternatively, the defendants asserted that the complaints’ allegations failed to state viable federal common law claims. In addition, the defendants argued that the Commerce Clause and Due Process and Takings Clauses barred the claims, that federal law preempted the claims, that the claims impermissibly infringed on the federal foreign affairs power, that the claims did not present a justiciable case or controversy, that the claims presented non-justiciable political questions, and that New York City lacked standing. The defendants also contended that state law claims were not viable because, among other things, allegations of proximate causation were lacking and New York City was “an active, voluntary participant in the unlawful activity that is the subject of the suit” and the claims were thus barred by the in pari delicto doctrine.

ConocoPhillips argued separately that “well-settled principles of proximate cause” barred liability in this case, as they had in similar cases against the gun and tobacco industries.

In a letter to the court on March 2, the parties asked the court to defer further briefing on the U.S.-based defendants’ personal jurisdiction motions and also to defer briefing on foreign-based defendants’ motions to dismiss until after the court rules on the U.S.-based companies motion that raises issues under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. New York City’s response to the 12(b)(1) and 12(b)(6) issues is due on March 30.

The three U.S.-based fossil fuel companies sued by New York City in its lawsuit seeking damages for climate change impacts filed motions to dismiss on February 23, 2018. The three U.S.-based companies are Chevron Corporation, Exxon Mobil Corporation, and ConocoPhillips. In a joint memorandum of law, these companies argued that New York City’s claims arise under federal common law and that the Clean Air Act has displaced the federal common law or, alternatively, that the plaintiffs’ “expansive derivative theory of liability” fails to state a claim that complies with federal common law standards. The defendants also argued that the claims infringe on the federal foreign affairs power, are barred by the Commerce Clause and Due Process and Takings Clauses, and are preempted by federal law. In addition, the three companies contended that the City does not state viable state law claims and that the claims are not justiciable because they do not present a justiciable case or controversy; because they present political questions; and because the City lacks standing.

New York City filed a federal lawsuit against the five largest investor-owned fossil fuel producers seeking costs the City had incurred and would continue to incur to protect itself and its residents from the impacts of climate change. The City filed the lawsuit in the federal district court for the Southern District of New York. The City alleged that the defendants “produced, marketed, and sold massive quantities of fossil fuels” despite knowing for many years that the use of fossil fuels caused emissions of greenhouse gas emissions that would accumulate and remain in the atmosphere for centuries, causing “grave harm.” The City alleged that the five defendants were responsible “for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution” and that the defendants also were responsible “for leading the public relations strategy for the entire fossil fuel industry, downplaying the risks of climate change and promoting fossil fuel use despite the risks.” The City charged that the defendants’ actions constituted an unlawful public and private nuisance and an illegal trespass on City property. The climate change-related injuries alleged by the City included more frequent and more intense heat waves, extreme precipitation, and sea level rise. In addition to money damages, the City seeks an equitable order ascertaining the damages and granting an injunction to abate the public nuisance and trespass should the defendants fail to pay the damages for past and permanent injuries.