City of Oakland v. BP p.l.c.

In the climate change public nuisance cases brought by Oakland and San Francisco, the federal district court for the Northern District of California rejected the fossil fuel company defendants’ remaining grounds for removal of the cases to federal court. The district court first concluded that it was bound by the Ninth Circuit Court of Appeals’ rulings in the County of San Mateo and Honolulu cases that the connection between the defendants’ alleged conduct on the Outer Continental Shelf and the plaintiffs’ alleged injuries was too attenuated to give rise to jurisdiction under the Outer Continental Shelf Lands Act, even if the district court itself would have found differently if “writing on a clean slate,” given the plaintiffs’ “sustained emphasis and attacks on production and sale of fossil fuels and given the central role of the outer Continental Shelf in America’s oil production.” In addition, the district court found that Ninth Circuit precedent in other climate change cases foreclosed federal enclave jurisdiction and jurisdiction under the federal-officer removal statute. The court also rejected the defendants’ argument that there was federal jurisdiction because the plaintiffs’ claims necessarily raised substantial First Amendment issues. The court vacated its earlier dismissal of four defendants on personal jurisdiction grounds, writing that “both sides deserve a clean slate in state court” but that the vacatur should not be considered as changing the court’s view of the personal jurisdiction issue.

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On August 4, 2021, the federal district court for the Northern District of California stayed proceedings in Oakland’s and San Francisco’s cases, in which a renewed motion to remand and motion to amend are pending. The court directed counsel to inform the court when the Ninth Circuit issues a ruling in County of San Mateo v. Chevron Corp., in which the Ninth Circuit is considering the fossil fuel companies’ additional grounds for removal on remand from the Supreme Court’s ruling that the scope of appellate review of remand orders extends beyond federal-officer removal when federal-officer removal is one of the removing defendants’ bases for removal.

A fully briefed renewed motion to remand is pending before the federal district court for the Northern District of California. The parties submitted a joint case management statement on July 9 in which they indicated they were ready to proceed with the remand motion if the court was inclined to do so, but that they would understand if the district court preferred to wait until the Ninth Circuit ruled on the issues of remand under the Outer Continental Shelf Lands Act and federal enclave jurisdiction. The defendants believed it would be reasonable to proceed on the remand motion because two other grounds for removal were at issue in this case—(1) Grable jurisdiction because Oakland and San Francisco’s misrepresentation claims “necessarily incorporate affirmative federal constitutional elements imposed by the First Amendment” and (2) a “more robust” basis for federal-officer removal than the Ninth Circuit considered in rejecting federal-officer removal in San Mateo. The cities took the position that the Ninth Circuit’s previous decisions in San Mateo and Oakland bound the district court on these issues but did not object to proceeding.

On June 23, 2021, Chevron Corporation filed notice in the district court of its voluntary dismissal of third-party complaints against the energy company Equinor ASA (formerly Statoil ASA). Chevron filed the third-party complaint in December 2017 against the company—of which the Norwegian State is majority stakeholder—for indemnity and contribution. The third-party complaint asserted that while the plaintiffs’ claims were meritless, Statoil, “as well as potentially the many other sovereign governments that use and promote fossil fuels,” must be joined as third-party defendants.

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Oakland and San Francisco argued that the Second Circuit opinion did not address removal jurisdiction and that the Second Circuit’s preemption analysis was not relevant to the claims in these cases, which the plaintiffs characterized as based on allegations of “wrongful promotion” of fossil fuels.

Fossil fuel company defendants filed notices about the Second Circuit decision's affirming dismissal of New York City's climate change case in cases where motions to remand were pending, including in cases brought by the District of Columbia, City of Hoboken, City of Oakland, and City and County of San Francisco. The defendants argued that the Second Circuit’s decision confirmed that the plaintiff’s claims necessarily arise under federal law. The defendants also argued that the decision supported their other grounds for federal jurisdiction, including the federal officer removal statute, the Outer Continental Shelf Lands Act, and federal enclave jurisdiction. The defendants also argued that the Second Circuit’s decision made it more likely that the Supreme Court would grant certiorari.

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In response to the motion to amend, the defendants argued that it was unnecessary for the plaintiffs to amend their complaints at this time, and that “one is left to wonder” whether the plaintiffs were seeking to derail Supreme Court review of one of the questions presented in the defendants’ January petition for writ of certiorari: whether a plaintiff is barred from challenging removal on appeal after curing any jurisdictional defect (in this case, by adding a federal claim after the district court denied remand) and litigating the case to final judgment.

In Oakland and San Francisco’s cases, the defendants filed their oppositions to the cities’ renewed motion to remand and their motion for leave to amend their complaints to remove federal claims. In their opposition to remand, the defendants contended that the action was removable under the Outer Continental Shelf Lands Act and the federal-officer removal statute and also because the plaintiffs’ claims arose on federal enclaves and because the claims necessarily raised disputed and substantial freedom of speech issues.

On January 28, 2021, Oakland and San Francisco filed a motion in the federal district court for the Northern District of California to amend their complaints to withdraw claims under the federal common law of public nuisance so that the sole remaining claims would be alleged violation of California’s representative public nuisance law.

The cities filed a renewed motion to remand in which they contended that the fossil fuel companies’ remaining grounds for removal after the Ninth Circuit’s May 2020 decision—federal-officer removal, Outer Continental Shelf Lands Act, enclave jurisdiction, and bankruptcy removal—were not viable.

The federal district court for the Northern District of California held a case management conference in City of Oakland v. BP p.l.c. on December 16, 2020 at which the parties agreed to the court’s proposal that the parties brief Oakland and San Francisco’s renewed motion to remand and motion to amend the complaint to remove federal common law claims, with the renewed motion to remand due by January 28, 2021. The court indicated that after briefing on the remand motion is complete, it will consider whether to defer its ruling on the motion pending the Supreme Court’s decision in the Baltimore case. Personal jurisdiction issues would be briefed after the court’s decision on the remand motion.

The parties submitted a joint case management statement articulating their positions on how the case should proceed after the Ninth Circuit’s remand of the case (November 10). The plaintiffs contended that no further stay of the cases was warranted and that there should be briefing on their motion to remand, as well as on the issues of staying the action, the plaintiffs’ amending their complaint to withdraw federal common law claims, and the plaintiffs’ planned motion to vacate the court’s ruling on personal jurisdiction. The defendants argued that the court should stay the case until the Supreme Court determines whether to grant forthcoming petitions for writ of certiorari in this case and County of San Mateo v. Chevron Corp.

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On August 24, 2018, San Francisco and Oakland filed notices of appeal of district court orders denying the cities’ motions to remand their climate change nuisance cases, dismissing the cases for failure to state a claim, and dismissing the cases against four oil and gas companies for lack of personal jurisdiction.

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On July 27, 2018, the federal district court for the Northern District of California granted the motions of four oil and gas companies for dismissal on personal jurisdiction grounds of Oakland’s and San Francisco’s climate change public nuisance lawsuits. The court previously ruled in a June 25 order that the actions should be dismissed for failure to state a claim. In its July 27 order, the court concluded that it could not exercise specific jurisdiction over the four companies, none of which was a resident of California, because it was “manifest that global warming would have continued in the absence of all California-related activities of defendants.” Because the plaintiffs “failed to adequately link” the four companies’ alleged California activities to the alleged climate change harms such as sea level rise, they did not satisfy the “but-for” causation standard for specific jurisdiction.

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On June 25, 2018, the federal district court for the Northern District of California dismissed the public nuisance lawsuits brought by Oakland and San Francisco seeking to hold five fossil fuel companies liable for climate change harms. The court—which previously ruled that any nuisance claim necessarily would arise under federal, not state, common law—rejected the cities’ attempt to differentiate their federal nuisance claims from claims based on greenhouse gas emissions previously found to be displaced by the Clean Air Act by the Supreme Court (in American Electric Power Co. v. Connecticut (AEP)) and Ninth Circuit (in Native Village of Kivalina v. ExxonMobil Corp. (Kivalina)). The district court held that AEP and Kivalina’s displacement rule would apply to the cities’ claims even though the claims were based not on the defendants’ own greenhouse gas emissions but on their sales of fossil fuels to other parties that will eventually burn the fuels. The district court stated: “If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori they cannot be sued for someone else’s.” The district court said the other distinction offered by the plaintiffs to differentiate their claims from those found to be displaced in AEP and Kivalina—that the defendants’ actions and the resulting emissions occurred outside the U.S.—placed the cities’ claims outside the proper reach of the courts. The court said that while the Clean Air Act did not reach foreign emissions and thus would not necessarily displace plaintiffs’ claims, such nuisance claims were “foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” The court stated: “This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.” In short, the court stated, “[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

After dismissing Oakland's and San Francisco's actions, the court issued a request for the parties to submit a joint statement regarding whether it was still necessary to addressing the pending and recently narrowed motions to dismiss on personal jurisdiction grounds. The court said it remained willing to decide the personal jurisdiction issue but that counsel might prefer to postpone such a ruling until after appellate review of the dismissal and no-remand orders.

On June 20, BP p.l.c. and the plaintiffs filed a stipulation to end jurisdictional discovery. BP withdrew three declarations concerning specific jurisdiction but said it would continue to pursue its personal jurisdictional arguments—that in-forum activities were not a “but-for” cause of alleged injuries and that exercise of personal jurisdiction was unreasonable under the circumstances—based on the allegations of the amended complaints. Just before the court dismissed the actions on June 25, it also signed off on the BP stipulation.

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ConocoPhillips Company and Royal Dutch Shell plc agreed to withdraw two of their arguments supporting their motions to dismiss Oakland and San Francisco’s climate change public nuisance cases for lack of personal jurisdiction. ConocoPhillips said it would forgo asserting “Corporate Separateness” (concerning whether ConocoPhillips’s subsidiaries were its agents for purposes of attributing their California contacts to ConocoPhillips) and “Reasonableness” (concerning whether exercise of personal jurisdiction was unreasonable under the circumstances) arguments against personal jurisdiction to avoid the need for jurisdictional discovery and to “speed a resolution” of the motion to dismiss for failure to state a claim. Royal Dutch Shell plc also agreed to withdraw its arguments against personal jurisdiction for which jurisdictional discovery had been ordered, and also said it would waive service of summons to moot its motion to dismiss for insufficient service of process. Both companies will continue to assert that personal jurisdiction does not exist because their alleged contacts with the jurisdiction are not the but-for cause of the cities’ alleged harms. The court signed off on the parties’ stipulations on June 6.

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In their supplemental brief, the defendants asserted that “well-established nuisance law” required that the court weigh the utility of fossil fuel extraction against alleged harms to determine if the defendants’ conduct was unreasonable; the defendants also argued that engaging in such a balancing would require “second-guessing Congress.”

In their supplemental brief, the plaintiffs argued that the court was not required to balance the utility of the conduct because they sought monetary relief—an abatement fund—and not to enjoin the defendants’ conduct.

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After the federal district court for the Northern District of California held oral argument on May 24, 2018 on fossil fuel companies’ motions to dismiss the climate change nuisance lawsuits brought by Oakland and San Francisco, the court issued a written order granting the cities’ requests to take jurisdictional discovery as to three of the defendants (BP p.l.c., ConocoPhillips Company, and Royal Dutch Shell plc) as well as concerning the nature of the relationship between Shell Oil Company and Royal Dutch Shell. The court also denied the plaintiffs’ request for jurisdictional discovery as to Exxon Mobil Corporation and ordered supplemental briefing on the jurisdictional issues, with briefing to be completed by August 16. In addition, the court ordered the parties to submit briefs by May 31 on “the extent to which adjudication of plaintiffs’ federal common law nuisance claims would require the undersigned judge to consider the utility of defendants’ alleged conduct.”

Chevron Corporation filed a notice of the pendency of King County's "materially similar action" against the same five defendants in Washington State court. Chevron said it anticipated removing the action to federal district court and therefore had not yet determined whether coordination between the King County proceeding and these cases was necessary.

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On May 10, 2018, the United States filed an amicus brief in support of dismissal of Oakland and San Francisco's case. Its brief argued that federal common law of nuisance afforded no relief to the cities; that federal law (the Clean Air Act, federal authorities relating to international climate change, and federal statutes governing production of fossil fuels) displaced any such nuisance claims; and that the claims violated separation of powers principles. The United States asserted that it has “strong economic and national security interests in promoting the development of fossil fuels, among other energy resources,” and that the lawsuit threatened to interfere with the U.S.’s “ongoing attempts to address the impacts of climate change, both domestically and internationally.

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The federal district court for the Northern District of California granted California, New Jersey, and Washington’s request to submit an amicus brief in support of Oakland and San Francisco’s opposition to fossil fuel companies’ motion to dismiss their climate change public nuisance suit. The three states characterized their brief as focusing on “a subset of issues where our States are in a position to offer a fuller picture of the case law and relevant statutes and regulations.” First, they contested the position of the fossil fuel companies and other amici states advocating for dismissal of the lawsuits that Oakland and San Francisco’s complaints asserted non-justiciable political questions. They also said that the complaints did not threaten state climate programs or jeopardize cooperative federalism. They also argued that the public nuisance alleged by Oakland and San Francisco was not authorized by law, that the Clean Air Act did not displace the public nuisance claims, and that the relief sought by the cities would not constitute extraterritorial regulation in violation of the dormant Commerce Clause.

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On April 24, 2018, the court asked the parties to address the applicability of the Supreme Court’s decision on that day in Jesner v. Arab Bank, PLC. The Court held foreign corporations could not be defendants under the Alien Tort Statute.

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On April 19, 2018, the court received an amicus motion on behalf of 15 states, led by Indiana, that argued that “[t]o permit federal adjudication of claims for abatement fund remedies would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials.” The states argued that the plaintiffs’ claims were non-justiciable political questions that jeopardized cooperative federalism and that the case could constitute extraterritorial regulation in violation of the dormant Commerce Clause. They also echoed the argument that federal statutes displaced common law claims.

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On April 19, 2018, the fossil fuel company defendants in Oakland and San Francisco’s public nuisance climate change lawsuits moved to dismiss the plaintiffs’ amended complaints. All of the defendants joined in a motion to dismiss for failure to state a claim, in which they reiterated arguments from their March 20 motion to dismiss the original complaint: that federal common law claims were either displaced by federal statutes or were “plainly improper”; that the plaintiffs failed to allege the elements of a nuisance claim; and that even if the plaintiffs pleaded a viable claim, judicial resolution would be inappropriate because it would violate separation of powers. Each defendant other than Chevron Corporation also filed a new motion to dismiss for lack of personal jurisdiction, and Royal Dutch Shell plc (Shell) again also sought dismissal on the basis of insufficient service of process. The defendants addressed four questions that the court on March 27 had requested be addressed in the briefing on the motion to dismiss. They said they were aware of no cases sustaining a nuisance theory of liability based on the otherwise lawful sale of a product where the seller finance or sponsored research or advertising intended to cast doubt on studies showing that use of the product was harmful. They also told the court that “no global-warming-based nuisance claim has ever made it past the pleadings,” argued that the plaintiffs sought to hold them liable for speech “plainly immunized” by the Noerr-Pennington doctrine, and asserted that the plaintiffs’ “expansive theory of liability has no limiting principle.” The plaintiffs’ response to the motions to dismiss was due by May 3, and defendants’ replies were due by May 10. The court had also set a deadline of May 10 for the United States to submit an amicus brief if it wished to do so. A hearing on the motions to dismiss was scheduled for May 24.

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The court deemed the March 20 motions to dismiss withdrawn, and new motions to dismiss the amended complaints are due on April 19. Briefing on the motions to dismiss is to be completed by May 10, and a hearing was scheduled for May 24.

In response to the court's request after the March 21 climate change tutorial that the non-presenting defendants explain any disagreements with Chevron's counsel's presentation, Exxon Mobil Corporation set forth a seven-point list of statements regarding climate change risk, the contribution of human activities to greenhouse gas emissions, and the Intergovernmental Panel on Climate Change (IPCC)—and stated its position that the statements were not judicial admissions. ExxonMobil called the IPCC’s reports “a reference point for understanding how scientific knowledge and confidence have evolved over the past 30 years and contain a wide range of data and potential outcomes” but that it did not adopt every statement made in the IPCC reports. Exxon also said it agreed with Chevron’s counsel that the resolution of climate science issues would not be determinative in the case for the reasons set forth in the motion to dismiss.

In response to the court's request after the March 21 climate change tutorial that the non-presenting defendants explain any disagreements with Chevron's counsel's presentation, BP p.l.c. indicated it did not disagree with Chevron’s counsel’s presentation and that it reserved the right to advance positions supported by fact and scientific/expert evidence in support of its defense.

In response to the court's request after the March 21 climate change tutorial that the non-presenting defendants explain any disagreements with Chevron's counsel's presentation, Royal Dutch Shell plc asserted that it did not “necessarily adopt each statement contained in the various [Intergovernmental Panel on Climate Change] reports” but agreed that they were an “appropriate source of information for the court to consider to further its understanding of the timeline and science surrounding climate change.”

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Also on April 4, Oakland and San Francisco submitted redlines showing the differences between their original complaints and the amended complaints filed on April 3, which added a federal nuisance cause of action. In their summary of additions to the complaints, the cities said they also had added, among other things, additional causation allegations based on a 2014 study that set forth the amount of carbon dioxide and methane in the atmosphere that is attributable to each defendant’s production of fossil fuels. The plaintiffs also said the amended complaint contained additional allegations regarding sea level rise, expressly disavowed claims based on lobbying activities, and removed allegations regarding the “Global Climate Science Communications Team” to avoid “unnecessary debates” regarding whether the group was “strictly focused on lobbying.”

In response to the court's request after the March 21 climate change tutorial that the non-presenting defendants explain any disagreements with Chevron's counsel's presentation, ConocoPhillips Company said it did not conduct research on global warming and climate change science but deferred to the scientific community’s consensus as reflected in the Intergovernmental Panel on Climate Change's science assessments, which it understood to be the basis of Chevron’s presentation.

On April 3, the plaintiffs filed first amended complaints, which assert nuisance claims under both federal and California law.

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On March 27, the court issued a notice directing the parties to address four issues in the remainder of the briefing on the motion to dismiss for failure to state a claim: (1) all state and federal court decisions sustaining and rejecting a nuisance theory of liability “based on the otherwise lawful sale of a product where the seller financed and/or sponsored research or advertising intended to cast doubt on studies showing that use of the product would harm public health or the environment at large”; (2) all state and federal court decisions addressing a nuisance theory of liability in the context of global warming; (3) the extent to which the Noerr-Pennington doctrine (pursuant to which antitrust violations cannot be predicated on attempts to influence public officials or the passage or enforcement of laws) may apply; and (4) if the plaintiffs’ theory of liability based on questioning or sponsoring research to question global warming science is correct, why everyone involved in supplying carbon-based fuels or otherwise involved in increasing carbon dioxide would not be liable if they questioned the science or sponsored research intending to question it.

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The court denied a third amicus motion by the Concerned Household Electricity Consumers Council because the motion was submitted after the start of the tutorial and the parties did not have an opportunity to address it.

The court accepted two sets of amicus materials that it received before the tutorial. One was an amicus brief submitted by individuals who described themselves as “an international team of scientific researchers concerned that scientific questions should be answered scientifically, rationally, dispassionately and logically, who have been investigating climate change for up to 12 years, and have intensively studied the question how much global warming we may cause.” Although the motion’s heading indicated it was submitted in support of the defendants, the body of the motion said that it was submitted not to support any party but to answer the court’s question about the “main sources of heat that account for the incremental rise in temperature on Earth.” The second amicus material accepted by the court was a presentation submitted by three professors, William Happer, Steven E. Koonin, and Richard S. Lindzen. Their presentation included a section comprising “a tutorial overview of climate science, covering the most essential concepts and results and highlighting fundamental problems with the claimed scientific ‘consensus,’” and also a section answering the court’s eight questions.

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At the tutorial, Judge Alsup requested, and the plaintiffs later provided, a copy of a paper published in 1992 in Nature on “Seasonal and interannual variations in atmospheric oxygen and implications for the global carbon cycle.”

When the court asked the parties whether it should resolve Shell’s motion challenging service before addressing the other motions and issues, both the cities and the defendants responded that doing so was not warranted.

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At the tutorial, three scientists presented on behalf of Oakland and San Francisco. An attorney for Chevron Corporation, the only defendant that did not contest personal jurisdiction, presented on behalf of the defendants. After the tutorial, the court issued a notice directing the other four defendants to “submit a statement explaining any disagreements with the statements” of Chevron’s counsel at the tutorial.

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After the tutorial on climate change science, the court issued a notice directing the other four defendants to “submit a statement explaining any disagreements with the statements” of Chevron’s counsel at the tutorial.

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On the eve of a climate change tutorial requested by a federal judge in California, fossil fuel companies filed motions to dismiss the nuisance lawsuits brought by San Francisco and Oakland. The five named defendants joined in a motion to dismiss for failure to state a claim. First, they argued that Congress had displaced federal common law claims based on domestic activities, whether those activities involved combustion of fossil fuels (in which case the Clean Air Act displaced federal common law) or production and promotion of fossil fuels (in which case “many federal statutes … expressly regulate (and, in fact, encourage) such conduct)). The defendants also argued that federal common law principles would not support recognition of a claim based on the defendants’ foreign activities. Second, the fossil fuel companies argued that elements of a federal common law claim for public nuisance were absent. The defendants asserted (1) that the plaintiffs had not alleged and could not allege that the defendants’ conduct was unauthorized by law; (2) that it was undisputed that the defendants did not control the fossil fuels at the time of the alleged creation of the nuisance (i.e., the time of combustion); (3) that the complaint’s allegations did not establish causation, since the claims depended “on an attenuated causal chain including billions of intervening third parties—i.e., fossil fuel users like Plaintiffs themselves—and complex environmental phenomena occurring worldwide over many decades”; and (4) that the damages sought by the plaintiffs in the form of an “abatement fund” could not be awarded because plaintiffs had not alleged actual harm, only “speculative future harms that may never eventuate.” The defendants also argued that damages would violate the defendants’ due process and First Amendment rights. Finally, the defendants asserted that judicial relief would violate separation of powers by invading the executive branch’s authority to conduct foreign affairs and legislative authority to regulate interstate and foreign commerce.

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Four of the defendants filed separate motions to dismiss on personal jurisdiction grounds, arguing that the court could not exercise either general jurisdiction over the companies—two of which were non-U.S. companies and two of which were headquartered in Texas and incorporated in other states (one in New Jersey, one in Delaware)—or specific jurisdiction based on the companies’ alleged activities in and contacts with California. Royal Dutch Shell plc also asserted that the complaint should be dismissed against it for insufficient service of process.

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Two weeks before the tutorial, Judge Alsup provided the parties with a list of “Some Questions for the Tutorial,” which included “What is the mechanism by which infrared radiation trapped by CO2 in the atmosphere is turned into heat and finds its way back to sea level?” and “What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?” He also requested copies of two documents referenced in the cities’ complaints: (1) an internal presentation from February 1996 for the Global Climate Coalition (an organization that the cities said “spent millions of dollars on campaigns to discredit climate science”) that the cities said predicted an average rate of warming greater than any over the past 10,000 years and (2) a memo prepared by an alleged “front group”; the cities said the memo “outlined an explicit strategy to invest millions of dollars to manufacture uncertainty on the issue of global warming.”

On March 1, the court set a schedule for motions to dismiss, with the parties’ briefing to be completed by April 10. The court invited the United States to submit (by April 20, if possible) “an amicus brief on the question of whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.”

On the same day that it denied Oakland's and San Francisco's motions to remand their climate change lawsuits against fossil fuel producers, the court issued a “Notice re Tutorial” that invited counsel for the parties to conduct a two-part tutorial on global warming and climate change on March 21. The court gave each side an hour to “trace the history of scientific study of climate change” and an hour to “set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.”

The federal district court for the Northern District of California denied Oakland’s and San Francisco’s motions to remand their climate change public nuisance lawsuits against five major fossil fuel producers to state court. The court held that federal common law necessarily governed the nuisance claims because “[a] patchwork of fifty different answers to the same fundamental global issue would be unworkable” and “the extent of any judicial relief should be uniform across our nation.” The court stated: “Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available.” The court dispensed with the cities’ three primary arguments for remanding the cases. First, the court said the cities’ novel theories of liability based on the defendants’ sales of their product did not differentiate their claims from earlier transboundary pollution suits in which the Supreme Court (American Electric Power Co. v. Connecticut) and Ninth Circuit (Native Village of Kivalina v. ExxonMobil Corp.) applied federal common law. Second, the court said the Clean Air Act did not displace the plaintiffs’ federal common law claims, allowing state law to govern; the court said that while the Clean Air Act spoke directly to the “domestic emissions” issues presented in American Electric Power and Kivalina, “[h]ere, 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.” Third, the court said the well-pleaded complaint rule did not bar removal. The court also indicated in dicta that “the very instrumentality of plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.” The court said defendants had not waived this issue. The court certified the decision for interlocutory appeal, finding that the issue of whether the nuisance claims were removable because such claims are governed by federal common law was a controlling question as to which there is substantial ground for difference of opinion and that resolution by the court of appeals would materially advance the litigation. The court’s order also noted that six similar actions brought by other California municipalities were pending before another judge in the district and those actions asserted additional non-nuisance claims.

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The federal district court for the Northern District of California considering whether to remand Oakland and San Francisco's climate change lawsuits against fossil fuel producers issued a request for supplemental briefing on the issue of how the concept of “navigable waters of the United States” related to removal jurisdiction. The court stated that the issue arose “because a necessary and critical element of the hydrological damage caused by defendants’ alleged conduct is the rising sea level along the Pacific coast and in the San Francisco Bay, both of which are navigable waters of the United States.”

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The federal district court for the Northern District of California is scheduled to hold a hearing on February 8, 2018 to hear arguments on the motion by the Oakland and San Francisco city attorneys to remand their climate change public nuisance actions against five fossil fuel companies to California state court. The parties completed their briefing on the remand motion on January 15, 2018. In their reply in support of remand, the city attorneys asserted that the defendants’ assertions of federal jurisdiction “would federalize vast areas of traditional state law.” They emphasized that they did not seek to limit anyone’s emissions and that the only remedy sought was an “abatement fund” to shift adaptation costs from the public to the fossil fuel companies. The city attorneys also argued that the argument that the cases arose under federal law suffered from the “fatal defect” that they relied on “ordinary preemption doctrines” that did not provide a basis for removal.

In their opposition to the remand motion, the defendants asserted that the cases “implicate longstanding federal government policies, concerning matters of uniquely national importance, including the Nation’s supply of energy and the global environment” and argued that the plaintiffs’ actions necessarily were governed by federal common law and necessarily raised federal questions by seeking “to supplant federal domestic and foreigh policy on greenhouse gas emissions to hold a handful of energy producers liable for the alleged consequences of rising ocean levels on a discrete portion of the U.S. coast.” The defendants also argued that the Clean Air Act completely preempted the actions because the statute “provides the exclusive cause of action for regulation of nationwide emissions.” The defendants also reiterated their arguments that the actions were removable because they were based on the defendants’ activities on federal lands and at the direction of the federal government, and because the claims would have an impact on a number of bankruptcy proceedings, not just Texaco’s, and because exemptions from bankruptcy jurisdiction for governmental exercises of police power were construed narrowly.

Chevron Corporation filed a third-party complaint against Statoil ASA—an energy company of which the Norwegian State is majority stakeholder—for indemnity and contribution. Chevron asserted that while the plaintiffs’ claims were meritless, Statoil, “as well as potentially the many other sovereign governments that use and promote fossil fuels,” must be joined as third-party defendants.

The plaintiffs argued that their actions did not arise under federal common law because they were based on the defendants’ “production and improper promotion of fossil fuels in massive quantities – a basis of liability cognizable under state law but wholly foreign to federal common law.” The plaintiffs also said the defendants “badly err[ed]” in arguing that the Ninth Circuit held in Native Village of Kivalina v. ExxonMobil Corp. that all tort claims related to global warming were governed by federal common law. The city attorneys also asserted that none of the other theories in the defendants’ “kitchen-sink notices of removal” had merit: the plaintiffs argued that that their claim to relief did not necessarily raise a substantial and disputed federal issue and also asserted that no court had held that the Clean Air Act completely preempted state common law public nuisance claims. The plaintiffs also said that the fact that “some unspecified portion of [the defendants’] oil and gas production occurs on federal land” did not provide a basis for removal under the Outer Continental Shelf Lands Act or under a “federal officer” or “federal enclave” theory of removal. The plaintiffs also argued that the bankruptcy removal statute did not provide a basis for removal based on the 30-year-old bankruptcy of Texaco, a subsidiary of defendant Chevron Corporation.

The Executive Committee for the Northern District of California denied the motion by defendants in climate change cases brought by the Oakland and San Francisco city attorneys to relate those two cases to the pending cases brought by San Mateo and Marin Counties and the City of Imperial Beach.

San Mateo and Marin Counties and the City of Imperial Beach took no position on the defendants' administrative motion to relate their cases to the cases brought by Oakland and San Francisco.

San Francisco and Oakland opposed relating the cases to the cases brought by San Mateo and Marin Counties and the City of Imperial Beach.

The defendants moved to relate Oakland's and San Francisco's cases to the lawsuits brought by San Mateo and Marin Counties and the City of Imperial Beach.