Another Court Setback for Big Oil as Ninth Circuit Rejects Petition for Rehearing in Oakland and San Francisco Climate Cases
The oil companies defending against climate liability lawsuits brought by California communities received yet another setback in court with the Ninth Circuit Court of Appeals denying the companies’ petition for a rehearing or en banc review in a case filed by the cities of Oakland and San Francisco. A three-judge panel from the Ninth Circuit issued an order denying the petition on August 12, just a week after the same panel denied a similar request from fossil fuel company defendants in cases filed by San Mateo County and five other California cities and counties.
The California climate cases – which demand that major fossil fuel producers help pay for climate adaptation costs like building sea walls – have been embroiled in a jurisdictional battle between federal court (the preferred venue of the fossil fuel companies) and state court where the communities originally filed the cases. Federal District Judge William Alsup ruled in 2018 that the Oakland/San Francisco case belonged in his federal court and subsequently dismissed the case, handing the five oil company defendants - BP, Chevron, ConocoPhillips, ExxonMobil, and Shell – an early victory. On appeal, however, the Ninth Circuit panel revived the case and ordered it be sent back to Alsup for him to consider if there is an alternative basis for his (federal) jurisdiction. That order was issued on May 26, 2020 along with a separate order in the San Mateo cases upholding the federal district court’s 2018 decision to remand (or send back) those cases to state court.
The defendants led by Chevron asked for an en banc (meaning full court) review of the May 26 order in the San Mateo cases, and that ask was denied on August 4. Additionally, Chevron and fellow Big Oil companies petitioned for a Ninth Circuit panel re-hearing and/or en banc review in the Oakland/San Francisco case. The panel again unanimously voted to deny that petition, and in both cases the full Ninth Circuit expressed no interest in taking up the petitions.
"In another unanimous ruling, the 9th Circuit Court of Appeals has told the fossil fuel companies that they are wrong," San Francisco City Attorney Dennis Herrera and Oakland City Attorney Barbara J. Parker said in a joint statement. "First it was decades of deception and disinformation; now these companies have been trying to drag their feet in court. It’s time to move these cases forward in state court, where they belong, and hold fossil fuel companies accountable for the harms, costs, and damage they are imposing on our cities.”
But the defendants are not giving up their fight to move the cases to federal court, where they initially succeeded in getting the Oakland/San Francisco case, as well as a similar climate lawsuit filed by New York City, dismissed entirely. On Monday, August 10 Chevron filed a motion in the Ninth Circuit Court requesting a stay or pause on proceedings in the San Mateo cases while the defendants ask the Supreme Court to review the jurisdiction issue. Fossil fuel companies already have such a petition pending before the Supreme Court in a climate lawsuit brought by Baltimore, Md.
Baltimore’s case is proceeding in Maryland state court even as the Supreme Court petition is pending. And another climate liability case brought by the state of Rhode Island is proceeding in state court at the same time as the fossil fuel companies are appealing that case’s remand order to the First Circuit Court of Appeals. The First Circuit has scheduled oral arguments for September 11, 2020.
The California cases would be one step closer to discovery and a trial if the motion to stay (in the San Mateo cases) is denied. The Oakland/San Francisco case is slightly more complicated because it has to go back to Judge Alsup for his reconsideration before it returns to state court. The oil companies could try to pause that case as well.