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By Dana Drugmand

In the first of two expected decisions on whether to send the California climate liability lawsuits back to state court, a federal district judge sided with the fossil fuel defendants in keeping the San Francisco and Oakland cases in federal court.

Judge William Alsup issued his order on Tuesday denying the plaintiffs’ motion to remand the cases back to state court, following a Feb. 8 hearing at the U.S. District Court for the Northern District of California in San Francisco. The judge rejected the cities’ argument that their claims arise under California public nuisance law, finding instead that federal common law applies in global warming cases.

“Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law,” Alsup wrote.

This contrasts with a separate hearing on similar cases brought by the counties of San Mateo, Marin and the city of Imperial Beach on Feb. 15, in which Judge Vince Chhabria was openly skeptical of the oil companies’ arguments and seemed ready to send those cases back to state court.

It also conflicts with previous findings that there is no federal common law in these cases because the Clean Air Act displaces global warming nuisance claims. Both AEP v. Connecticut in 2011 and Native Village of Kivalina v. ExxonMobil et al. in 2012 determined that plaintiffs’ federal common law nuisance claims against large fossil fuel emitters were displaced by the federal air pollution statute, which authorizes the Environmental Protection Agency to regulate emissions.

But Alsup decided displacement does not apply in this case because the conduct complained of is global in scope. “Plaintiffs do not bring claims against emitters, but rather bring claims against defendants for having put fossil fuels into the flow of international commerce,” he wrote. “Importantly, unlike AEP and Kivalina, which sought only to reach domestic conduct, plaintiffs’ claims here attack behavior worldwide…Here, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.”

According to Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, this is a notable decision.

“This decision holds that there is a federal common law public nuisance claim that applies to these lawsuits, and that that claim has not been displaced by the Clean Air Act, or by the Supreme Court’s earlier climate change decisions,” he said. “This is not the result that the plaintiffs sought, but it is quite a result nonetheless.”

Alsup did certify his decision for interlocutory appeal, meaning that plaintiffs are allowed to challenge his ruling in the Ninth Circuit Court of Appeals.

“We think Judge Alsup’s decision is incorrect and, as he acknowledged, there is substantial ground for a difference of opinion about the role (jf any) of federal common law in these disputes. That’s why we have courts of appeals,” said Vic Sher, one of the attorneys representing the counties of Marin and San Mateo and the city of Imperial Beach. Those cases await a decision on remand from Chhabria, who all but dismissed the fossil fuel defendants’ argument that federal common law applies during his remand hearing on Feb. 15.

“We’re not going to debate it, because we already know that there’s not a federal common law claim,” Judge Chhabria said in questioning Chevron lawyer Theodore J. Boutrous, Jr. “Federal common law in this area no longer exists because Congress has displaced it with legislation.”

Vermont Law School professor Pat Parenteau said it seemed clear that Judge Chhabria would send the cases back to state court, since he had few questions for the plaintiffs’ counsel at the hearing. If that happens, it would set up a conflict for the appeals court.

“San Francisco and Oakland will take it up with the Ninth Circuit,” Parenteau said. “In the meantime, the decision in [San Mateo, San Marin and Imperial Beach] case will come down and be appealed by the defendants, and both of those actions will be consolidated by the Ninth Circuit and teed up for briefing and argument sometime this year.”

Parenteau said he believes the Ninth Circuit will ultimately move the cases back to state court.

“I still think the odds are they are going to go back to state court,” he said. “And they should. I don’t think there’s any federal question at all. I think there’s been attempts to manufacture federal questions. So the Ninth Circuit will sort this out and decide there really is no federal nexus. These are public nuisance cases under state law, period.”