April 2, 2018 by Daniel Farber

Climate Change in the Courts

There are three important climate lawsuits pending in federal court. Here's the state of play and what to expect next.

In the first case, Oakland and San Francisco sued leading oil companies. They claim that the companies' production and sale of fossil fuels is a public nuisance under California state law. They seek an abatement fund to pay for sea walls and other infrastructure needed to address rising sea levels. This lawsuit was originally filed in California state court, but the defendants filed a motion to remove to federal court.

The federal judge ruled in favor of removal on the ground that the defendants' conduct fell under the federal common law of nuisance, not under state law. The judge certified that ruling for immediate appeal but did not stay proceedings in the trial court. The judge also rejected the argument that the federal common law in this case had been displaced by the Clean Air Act, as the Supreme Court had ruled regarding actions against power companies (as opposed to oil companies). As a next step, he directed the parties to present a tutorial on climate science. The most notable aspect of the tutorial turned out to be Chevron …

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