Judge tosses out climate suit against big oil, but it's not the end for these kinds of cases

A federal judge just tossed out a lawsuit brought against the world's largest oil companies for selling fuels they knew would boost sea levels and disrupt the global climate.

This decision, on its surface, is a victory for big oil. But the fight against these huge companies and their roles in stoking climate change is far from over.

The suit thrown out on Monday — which was filed by San Francisco and Oakland — won't doom similar lawsuits by New York, Colorado and six others in California against big oil for the damages wrought by future floods, droughts, and wildfire.

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"The overall effect on those state cases is negligible," Ann Carlson, the director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law, said in an interview. 

These ongoing lawsuits sit in state courts, and this week's federal decision by U.S. District Court Judge William Alsup — who previously received an unprecedented climate change lesson from both oil companies and scientists in the courtroom — has little bearing in these separate, and more favorable, legal systems. 

It's also a potentially good sign for future cases that Alsup didn't throw out the case on any scientific grounds.

Alsup agrees with the scientific findings that fossil fuel burning has spiked global temperatures and accelerated sea level rise, but when he threw out the suit, he decided that a U.S. court alone cannot solve such a weighty, global problem.

Image: nasa

In a 16-page statement, Alsup details that 120 years of advancing climate science shows fossil fuel burning has unquestionably driven climate change by releasing substantial amounts of heat-trapping carbon dioxide into Earth's atmosphere. However, he notes that a court by itself can't decide past and future damages that are "breathtaking" in scope.

"In Alsup's view, because climate change is a global problem, it requires a global solution," Michael Burger, the executive director of Columbia University's Sabin Center for Climate Change Law, said in an interview.

"The issue is not over science," wrote Alsup, who cited that "glaciers around the world have been shrinking" and "ice sheets over Greenland and Antarctica have been melting."

"The issue is a legal one — whether these producers of fossil fuels should pay for anticipated harm that will eventually flow from a rise in sea level," said Alsup. 

Alsup believes he can't possibly decide how to impose punishment for the past, current, and future actions of these companies — in large part because energy production has also benefited humanity, providing billions of people with electricity and improved lives.

These questions, "of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself," need the help of congress, the president, and foreign nations, he argues.

"It [Alsup's decision] implicates other countries," said Burger. "He's saying ultimately the case needs to be resolved by political branches."

Not all climate lawsuits are doomed

Alsup is a well-known federal judge whose opinion could very well influence other cases against oil companies like Shell and Chevron. But many similar lawsuits, like those in Colorado and New York, are subject to different, more well-established laws.

"His decision is irrelevant from a legal perspective," Carlson said, as long as these cases stay in state courts.

Federal courts, like Alsup's, are less favorable to lawsuits like San Francisco and Oakland's, which contend that fossils fuel companies are liable for damages because they've created a public "nuisance," said Carlson. (Nuisance is a realm of law that means an action that, broadly speaking, causes trouble or injury.)

On the national level, judges simply don't have much to work with. Congress hasn't even weighed in on what the law should be for cities suing fossil fuel companies, said Carlson. 

"We're really in a new world in state court," Carlson added, noting that California nuisance laws are well-established, written statues with guidelines to follow.

Image: nasa

Accordingly, Alsup's earlier decision to allow this case to stay in federal court may have been a big problem to begin with. 

"He’s just starting with a roadblock," said Carlson. "My view is he got the question wrong. It [this case] should stay in the states." 

And these state cases appear to be safe for now, meaning they won't be tossed out because Alsup thinks they require a political, or even global, solution. State courts are separate entities from federal courts, and their unique nuisance laws might be effectively used in these lawsuits.

Still, though, there's more to come from Alsup's judgement. 

The decision, said Burger, could soon be appealed to another federal court, where another judge will decide if such a case must indeed fall under the dominion of the federal government for an appropriate law to be made — if any. 

This sort of lawsuit — suing fossil fuel companies for stoking climate change — is relatively new, uncharted territory.  

But one thing is certain: Climate change, said Alsup, is not in dispute. It's who has to pay, how much, and who's going to decide. 

"It’s Alsup’s view that because sea level rise impacts all navigable water of the U.S., it falls under the jurisdiction of the United States," as opposed to a certain state, said Burger. "And because of the global nature of climate change, it requires as uniform a rule as can be developed."

It's less clear, however, if U.S. lawmakers will tackle the problem.

“By kicking the case to a do-nothing congress and a climate denying White House, the court essentially ruled that taxpayers alone should pay the massive costs of adapting to climate change," Richard Wiles, executive director of the Center for Climate Integrity, said in a statement. 

"There are always adverse decisions along the road to victory," Wiles added. "That was true in tobacco, lead, and asbestos, where the courts ultimately crafted a solution to a major crisis. This fight is just getting started and we expect to win.” 

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