Judge says climate issues the purview of federal government, tosses NYC lawsuit

On Thursday, a US District judge dismissed a lawsuit from the City of New York against major oil companies BP, Chevron, ConocoPhillips, Exxon Mobil, and Shell. New York City had alleged that the oil majors created a nuisance by actively promoting oil use for decades, even after they were presented with significant and reliable information showing that catastrophic effects from climate change would result.

The judge didn’t dispute the effects of climate change, but he did dispute (PDF) that courts exercising state law could remedy the situation.

In the January complaint, NYC demanded that the oil majors pay for the costs of adapting to climate change, like expanding wastewater storage areas, building new pumping facilities to prevent flooding, and installing new infrastructure to weather storms. The city stated that the oil companies named in the suit were responsible for more than 11 percent of carbon and methane emissions that had built up in the atmosphere since the Industrial Revolution, more than all other individual industrial contributors.

The oil companies didn’t dispute that, and neither did the judge. As early as the mid-1980s, the judge’s opinion states, “Exxon and other major oil and gas companies, including Mobil and Shell, took actions to protect their own business assets from the impacts of climate change, including raising the decks of offshore platforms, protecting pipelines from coastal erosion, and designing helipads, pipelines, and roads in the warming Arctic.”

Despite the legally unchallenged culpability of the oil companies, the judge said that New York City’s grievances couldn’t be addressed in the way the city wanted. Instead, the Clean Air Act as administered by the Environmental Protection Agency (EPA) was supposed to be used to regulate and compensate for emissions.

A federal government job

The crux of the problem seems to come from how emissions are created and cause harm. Oil companies might produce oil, but other people burn it and cause the subsequent carbon emissions. New York City’s initial complaint paralleled earlier lawsuits against the tobacco industry, arguing that if customers use a company’s product exactly how it should be used and that causes harm, the company can be held liable for that harm.

That argument appears unconvincing to the judge in this matter. “As an initial matter, it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades,” the judge’s opinion states.

“More importantly,” the judge continues, “Congress has expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.”

“Climate change is a fact of life, as is not contested by Defendants,” the judge wrote. “But the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”

Speaking to Reuters, a spokesman for New York City Mayor Bill de Blasio said the city planned to appeal the decision.

As New York City’s lawsuit suffered a blow on Thursday, Baltimore brought a similar lawsuit against the same oil companies on Friday. In addition to alleging public nuisance and trespassing, as the New York City suit did, Baltimore alleges that oil companies violated Maryland’s Consumer Protection Act, which the  says “prohibits misleading statements and ‘knowing concealment.'”

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