Next Up In The Stupidest Litigation In The Country: The Science?

For some reason I haven’t seen much about this even on climate-focused websites; but in late May one of the litigations that I have named as being among the stupidest in the country, and which had been dismissed by the trial court, got reversed and reinstated by the federal Ninth Circuit Court of Appeals in San Francisco.

What next? The defendants — who are five major oil companies — had managed to get the two related cases dismissed at the trial court level on purely procedural grounds, without ever having occasion to address the merits of whether the so-called “settled science” of greenhouse-gas induced catastrophic climate change is complete baloney. Now they are running out of such procedural defenses. If they are not going to just concede the cases and fork over billions of dollars, it now looks like they will likely need to attack the fake science. I don’t know that they will. But I do know that they soon may not have much choice.

I’ll begin with a relatively thorough history of these cases so far. Back in 2017, the Cities of San Francisco and Oakland in California, at the urging and with the assistance of environmental activist outside lawyers, filed cases in the California state courts alleging common law tort claims for “nuisance” against five major oil companies (Exxon, Chevron, BP, Conoco and Shell). A “nuisance” claim is the kind of thing you can bring against your neighbor for, for example, having a smoke stack that dumps large amounts of toxic ash on your house. In the Oakland and San Francisco cases, the theory is that all burning of fossil fuels constitutes a “nuisance” because of contribution to global warming. In their complaints, the plaintiffs paint horrible scenarios of impending environmental doom from the burning of fossil fuels produced by the defendants, including sea level rise that supposedly would soon swamp these coastal cities.

The oil companies could have chosen at that point to defend on the ground that the so-called “science” behind these scenarios of doom was fake. But these defendants have shown time and again that they are scared to death of the media pushback (CLIMATE DENIERS!!!) that they will face should they make any effort to go after the fake science. So instead of that tack, the defendants embarked on a series of procedural maneuvers. First, they “removed” the cases to federal court. If you get sued in state court, you can “remove” the case into federal court if you can meet certain criteria, one of which is that the claims against you arise under federal rather than state law. The plaintiff cities in these cases had carefully crafted their claims to arise under state law rather than federal; but the defendants argued that the federal environmental laws and the federal Clean Air Act pre-empted the field, and that any claim against them in this area was of necessity federal, whether it said so or not. On removal, the cases landed in the federal Northern District of California before a Judge Alsup. The plaintiffs moved to send the case back to state court because the claims were state claims; and the defendants moved to dismiss the cases on the ground that the “nuisance” theory did not stand up under the federal environmental law.

In June 2018 Judge Alsup ruled for the defendants on both of those issues, and dismissed the cases.

Since then the wheels of justice have been grinding at their typical glacial pace. The plaintiffs appealed to the relevant Court of Appeals, which in this circumstance is the Ninth Circuit in San Francisco. Nearly two years on, the Ninth Circuit has now rendered its decision. Here is a copy. The bottom line: the Court of Appeals ruled for the plaintiffs on both issues. The federal environmental law is held not to fully pre-empt these claims; the claims are therefore state law claims; the cases therefore have no basis to be in federal court; and they get sent back to state court.

The defendants still have procedural steps they can take, but at this point they are mostly playing for time. First, they can ask for an en banc rehearing in the Ninth Circuit, but that is very unlikely because the panel decision was unanimous. And then they can try a run at the U.S. Supreme Court, but that is also a long shot, if perhaps somewhat less so. Even if those options come up completely dry, as is more likely than not, it will take well more than a year for that process to play out.

Suppose that all falls flat. Somewhere a year or two from now these oil majors are going to find themselves in California state court with no real defense other than that global warming caused by emissions from their products poses no serious risk to the plaintiffs. In other words, the science.

Multiple commenters out there have suggested that this will now be the end of the oil business, or at least of the major oil companies. If the Ninth Circuit decision stands up, the activist environmental lawyers are ready with complaints in hand to be filed by essentially every jurisdiction in the country seeking a cut of the vast lucre of the oil business. It will be like the tobacco litigation, they say. The defendants will inevitably be swamped by the tide of litigation. Your city is not next to the rising seas? No problem — you can claim prospective damage from tornadoes or hailstorms or something.

Two principal options for going forward present themselves. A former colleague of mine sends along a client alert memo from the Wachtell Lipton law firm, advising of the Ninth Circuit’s decision, and suggesting the outlines of a strategy that Wachtell would recommend for clients to follow. You may recognize the Wachtell firm as among the premier law firms in the country for strategic advice to major corporations. Wachtell is also the law firm representing Conoco in the two cases in question. Here is their advice from the memo:

Corporations and directors can . . . manage their exposure by actively evaluating climate-related risk, considering sustainability initiatives, implementing appropriate operational and board monitoring procedures, and documenting all these efforts.

This borders on the idiotic. Is any oil company actually going to keep the crocodiles away by trying to paper over their main activities with a bunch of so-called “sustainability initiatives”? The fact is that they are fundamentally in the oil business. Nobody with a brain is going to be fooled. But of course, Conoco has actually hired Wachtell. And you’ve probably seen all those ads from Exxon about algae research and other such diversionary tactics. Good luck with that guys.

Another approach is outlined by Christopher Monckton in a post on June 8 at Watts Up With That, with the headline “Climate litigation: big oil must fight on the science or die.” Monckton argues that the science of catastrophic global warming is completely fake, and further that courts that have been confronted with fake scientific claims are much better than you might think at figuring that out and putting the charlatans in their place.

As a first example, Monckton cites the litigation back in the 1990s between tobacco companies and the EPA over the alleged dangers of indoor second-hand tobacco smoke. As with the oil companies in the Oakland and SF suits, the tobacco companies exhausted all their procedural defenses and motions without success, and then were forced to present the science — which, in the case of second hand smoke, was extremely strong for their side, and weak for the EPA. In 1998, a federal judge in North Carolina named William Osteen wrote a 100 page opinion excoriating the EPA and vindicating the tobacco companies on this issue. (Of course, the tobacco companies had other problems in the case of actual smokers.). Monckton:

If anyone doubts the competence of the courts to decide upon disputed questions of science – a doubt frequently and nervously expressed by climate lobbyists desperate to avoid thorough judicial scrutiny of their preposterous position on global warming – that doubt is dispelled by Judge Osteen’s masterly consideration of the substantive scientific merits of EPA’s case.

And then there was the litigation in England where a truck driver, seeking to protect his kid from the propaganda of Al Gore’s climate movie “An Inconvenient Truth,” brought suit to get that film excluded from the English schools. Monckton again:

The moment the Government received the scientific testimony, it folded and agreed to pay half a million dollars’ costs to the truck-driver, and to circulate the movie only if it was accompanied by 77 pages of corrective guidance.

I would say that I am not quite as sanguine as Monckton. The global warming issue is highly politicized, and a very progressive judge could very likely not be subject to convincing even by the most completely definitive demonstration. On the other hand, the oil companies are coming to the point when they can’t duck this issue. So far, the alarmist side has had a huge advantage of funding even with no real science to back it up. That could soon be changing, maybe after the string gets played out for another year or two.