Judge tosses out another climate suit in NYC. What comes next?

For the second time this summer, a federal judge acknowledged that oil companies are unquestionably responsible for the greenhouse gases amassing in the atmosphere, warming the planet and causing seas to rise. But district court judge John Keenan ultimately ruled that courts aren't a good place to decide whether oil companies are responsible for the environmental damages wrought by the sale of their fossils fuels.

On Thursday, Keenan tossed out New York City's lawsuit against Chevron, ExxonMobil, and other oil giants, explaining that "the immense and complicated problem of global warming" requires a global solution — involving Congress and the president — because courts aren't equipped to solve such a world-encompassing problem.

In the short-term, this could appear as two telling victories for oil companies, who have no interest in being liable for past, current, and future damages inflicted by rising seas, drought, and extreme flooding. But fossil fuel producers are far from absolved. No climate-liability lawsuit has yet made it past preliminary court hearings, but persuading a judge to send an unprecedented climate-liability lawsuit to trial was expected to be quite challenging. There are still plenty of cases ahead to be examined by different judges in different parts of the country.

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"The story is far from over," Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law, said in an interview. "This doesn’t settle the issue — it’s another decision in what will ultimately be 10 or 20 more."

What happens next

Courts on both federal and state levels still have some big issues to work out before a trial can even begin.

"Before any court gets to the merit of the cases or decides if these [oil] companies are liable, or whether they lied or didn’t lie, there are a number of preliminary issues confronting the plaintiffs [like New York City]," said Burger.

The first is whether courts should deal with climate change lawsuits — a global problem involving foreign nations — at all. The second is if climate damages fall under the purview of federal laws that already exist, like the decades-old Clean Air Act.

Warming climes in Antarctica have caused massive ice shelves, like Larsen B in 2003, to collapse into the sea. Credit: nasa

For now, tossed-out cases like New York City's will be taken up by appeals courts, where the suits will be examined from a clean slate by different judges.

"This is par for the course," said Burger, noting that there are hundreds of thousands of cases going on in the U.S. all the time. The legal process is inherently tedious and drawn out.

Two climate-liability cases may have already been thrown out of federal courts, but one hasn't. A federal judge in California recently sent a similar case, in which the County of San Mateo is suing Chevron for sea level rise, to state court.

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So the score, so to speak, is two to one.

"The courts are split," said Burger.

Where oil companies might fall

Most of the cases filed by cities and counties against fossil fuel companies are taking place in state, not federal courts. And this is where cities might have better odds. State courts generally have formal, established laws for "nuisance" lawsuits, a realm of law meaning an action that, broadly speaking, causes trouble or injury.

"They have a higher chance of success because of more favorable state doctrine — this is especially true in California," Ann Carlson, the director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law, said over email.

"It's just the beginning of the climate fight"

In 2017, for example, a California case involving lead paint exposure foreshadowed what state judges could decide in climate cases, Maya Golden-Krasner, senior attorney at the Climate Law Institute's Center for Biological Diversity, said in an interview. California judges said that paint companies must pay $1.1 billion to clean up lead paint in homes built before 1978.

"There’s good reason to be in state court," noted Golden-Krasner.

"That's certainly one reason why the plaintiffs [cities and counties] have filed the cases there," said Burger.

Federal judges, in fact, might decide that climate change is even better suited to state courts. This would challenge Keenan's ruling, which said that greenhouse gases affect every inch of the globe, so federal politicians must deal climate change damages.

"Such claims implicate countless foreign governments and their laws and policies," wrote Keenan.

But Golden-Krasner called this interpretation "a mistake." New York City's problem, like San Francisco's, is a local problem, affecting specific communities, she said.

"These cases are asking for damages for a very local problem," Golden-Krasner said. "Should companies who made trillions of dollars selling fossil fuels pay for damages — or should it fall to taxpayers?"

"It's just the beginning of the climate fight," she said.

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