NYC: Climate liability case isn’t about curbing emissions

By Jennifer Hijazi | 11/25/2019 06:39 AM EST

Lawyers for New York City last week told a court that the Big Apple is not trying to step on federal regulators’ toes with its climate liability lawsuit against Chevron Corp. and other oil firms.

During oral arguments Friday, attorney John Moore faced a panel of federal judges who at times seemed skeptical of his case that New York City isn’t trying to get companies to halt oil production but to pay for the local damages of climate change, a phenomenon exacerbated by their products.

Regulation of greenhouse gas emissions — a job for federal legislators — isn’t the end goal, Moore told three judges for the 2nd U.S. Circuit Court of Appeals.


"Here, the effect of a judgement for the city is not to impose any particular standard of conduct on the defendants or on anyone else," he said. "Rather, the effect is to require the defendants to internalize the costs of their products that they have thus far been able to pass off onto others."

A ruling by the 2nd Circuit in New York City’s favor, Moore said, does not necessarily require oil companies to halt greenhouse gas emissions. He said oil majors could accept reduced profits or raise the price of crude.

Gibson, Dunn & Crutcher LLP attorney Theodore Boutrous, who represented Chevron, said New York City’s allegations are worldwide concerns that shouldn’t be decided by a court. He said the city is attempting to apply "unprecedented, sweeping, interstate, international" liability that would impose New York laws across the globe.

"The city wants to regulate the oil production activities of these companies all around the world and regulate the emissions that result from the use of the products," he said.

In order to escape liability for damage caused by climate change, companies would be forced to control emissions, Boutrous said.

After hearing Chevron’s arguments, the judges — Carter appointee Amalya Lyle Kearse, a senior judge, and Trump picks Richard Sullivan and Michael Park — seemed keen for Moore to explain how New York’s case wasn’t about regulating greenhouse gases.

Moore answered that the oil industry’s knowledge of "catastrophic" climate consequences stemming from the use of its products is the key issue. Instead of mitigating the damage, companies "doubled down" on production, he said.

U.S District Court for the Southern District of New York Judge John Keenan last year tossed the city’s original case, which raised complaints about public and private nuisance and trespass.

Keenan, a Reagan appointee, said the state law claims were not applicable to the case, which he said raised uniquely federal questions that are trumped by the Clean Air Act.

Judge William Alsup, a Clinton appointee to the U.S. District Court of the District of Northern California, dismissed lawsuits from San Francisco and Oakland on similar grounds.

Other municipalities seeking compensation for climate change impacts initially filed their lawsuits in state courts and have succeeded in jurisdictional fights against oil industry attorneys who say the disputes belong in federal venues where the Clean Air Act reigns.