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Litigation against fossil fuel companies over climate change to continue despite setback

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Municipalities seeking to hold fossil fuel companies financially responsible for the impacts of climate change are likely to continue to pursue such lawsuits despite a recent federal court ruling that some experts believe may have dealt a blow to such efforts.

In fact, the state of Rhode Island filed a climate change lawsuit on July 2 in Providence/Bristol County Superior Court against 21 oil and gas companies and some of their affiliates a week after the “disappointing” decision by a federal judge in California to dismiss a similar lawsuit filed by the cities of Oakland and San Francisco.

On June 25, Judge William Alsup of the U.S. District Court for the Northern District of California, dismissed the case against San Ramon, California-based Chevron Corp., Irving, Texas-based Exxon Mobil Corp., Houston, Texas-based ConocoPhillips; London-based BP P.L.C., and The Hague, Netherlands-based Royal Dutch Shell P.L.C..

Shell said in a statement that issue should be addressed by government policy and cultural change instead of the courts.

In dismissing the case, “the issue is not over science,” the judge stated in his ruling.

“All parties agree that fossil fuels have led to global warming and ocean rise and will continue to do so and that eventually the navigable waters of the United States will intrude upon Oakland and San Francisco,” he said. “The issue is a legal one — whether the producer of fossil fuels should pay for anticipated harm that will eventually flow from a rise in sea level.”

The lawsuit charged that the defendants created a public nuisance, but the judge said that “nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve and, indeed, could interfere with reaching a worldwide consensus.”

“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,” he said.

Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law, said in an email that “Judge Alsup’s decision is not binding in any other court hearing in any of these cases.”

“Judges may be influenced by his reasoning or they may not,” Mr. Burger said, adding that he expects the ruling to be appealed to the 9th U.S. Circuit Court of Appeals in San Francisco.

Andy Miller, San Francisco-based of counsel for Clyde & Co, said the ruling is a major setback for the cities and counties that have taken on the fossil fuel industry, adding that the judge had “served notice to other climate change litigants that the road ahead is rockier and steeper than they might have imagined.”

“While Judge Alsup asserted that federal courts have the authority to fashion common law remedies for claims based on climate change, he evoked his discretion in ruling that solutions to problems on this ‘vast scale’ are more appropriately addressed by the other two branches of our government,” he said. “But from the standpoint of the plaintiffs in these cases, we now have an executive branch that’s unwilling to engage on climate change — or even admit that it’s a problem — and a legislative branch that, at this point, is in lockstep with the executive branch.”

 As long as this situation continues, Mr. Miller added, “the plaintiffs, and the environmental community in general, are looking at these lawsuits as the one remaining avenue available to them to address the issue of climate change and keep it in the public eye.”

Judge Alsup’s ruling differs from fellow Northern California District Judge Vince Chhabria, who ruled in March that a climate change lawsuit filed against 37 fossil fuel companies by the California counties of San Mateo and Merced and the city of Imperial Beach, California, could be brought in state court.

The plaintiffs charged that greenhouse-gas emissions caused by the companies are contributing to global warming and melting glaciers, resulting in rising sea levels that worsen coastal flooding.

Vic Sher, a partner in the San Francisco-based firm Sher Edling L.L.P., which represents the three California municipalities in that case, the state of Rhode Island in its lawsuit and other jurisdictions suing over climate change, said in a statement that “Judge Alsup’s ruling is disappointing, but not unexpected in light of his previous conclusion that only the federal common law of nuisance applies to the San Francisco and Oakland cases.”

“But it has virtually no bearing on the lawsuits brought by our seven clients, which are moving forward under a variety of state common law claims, focusing on the marketing, production, distribution and sale of products that these companies knew would cause the exact kinds of climate change-related consequences the communities are facing today,” he said.

Rhode Island charged that the energy companies knew about the impact of fossil fuels were having on the environment but did not take steps to mitigate that risk.

“I can’t speak for any other state, but certainly the effects of climate change are occurring and coming on, and so as we go forward it would seem to me that more people will start paying attention to the consequences of climate change,” said Neil Kelly, assistant attorney general and deputy chief of the Rhode Island Attorney General Office’s civil division in Providence.

Mr. Kelly added that “our forum will be the courts, where it will be decided on evidence, and we’ll present the evidence and the facts that show through science that climate change does, in fact, exist.”

“We can see it here in terms of the rise of the ocean,” Mr. Kelly said. “It’s come up a foot in recent decades, and it’s anticipated that it’s going to rise a few more in the next coming, so these things are occurring right in front of us and there is science to back this up, regardless of what others say. We wouldn’t have brought the case unless the facts and law supported it.”