Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update

Should climate change responsibility be assessed in the courts or by the elected policymaking branches? This past week, a federal district court answered that question. Several municipalities in multiple states filed lawsuits against energy companies claiming those entities are liable for billions in damages for climate change based on theories of public nuisance. On June 25, 2018, federal Judge William Alsup of the U.S. District Court for the Northern District of California issued the first major ruling in one of these cases, dismissing one such lawsuit brought by the cities of Oakland and San Francisco against BP, Chevron, ConocoPhillips, Exxon Mobil, Royal Dutch Shell, and others.
The ruling is likely to have an impact on similar pending lawsuits and undoubtedly sets precedent regarding whether and how the courts can be accessed to bring climate change-associated liability claims. In its order, the court acknowledges the reality of climate change and its impacts, but it underscored that “This issue is not over science.” Indeed, the opinion focuses on the proper role of the courts in a system of separated powers in the face of a theory of liability that the court called “breathtaking” in scope. The opinion analyzes the proper, limited application of the public nuisance doctrine and cautions that these types of lawsuits may actually “interfere with reaching a worldwide consensus” on how to address climate change. This Teleforum will discuss what it takes to establish a public nuisance claim, the proper role of the courts in deciding hot button policy issues, other government branch prerogatives, imposing retroactive liability, extraterritorial application of law, and the jusiticiability of claims that may impact foreign policy.
Featuring:
Prof. Donald Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University School of Law
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