Council, City Attorney preparing to sue fossil fuel companies (UPDATED)

(updated below)

Earlier this week, the City Council sent a letter to City Attorney Pete Holmes indicating its support for his plan to sue fossil fuel companies over the damage that their product has done to the city due to anthropogenic climate change.

Seattle would be joining San Francisco, Oakland, New York City, Los Angeles, King County, and other jurisdictions in doing so. The intent of the lawsuits is to make the companies pay for the costs that the cities are incurring to deal with more intense weather patterns, sea level rise, and other climate change impacts.

Of course, there are many stakeholders in the long chain of people and companies involved in carbon-intensive development, so it’s a bit difficult to single out any of them and assign culpability. The approach taken by Oakland and San Francisco, who in October 2017 filed jointly, was to sue specifically five companies (BP, Chevron, ConocoPhillips, Exxon Mobil, and Shell) under the State of California’s public nuisance laws, specifically holding the companies liable because they knew for decades that their products were causing global warming and that there would be climate impacts, but they concealed that information and continued to sell their products.

The Oakland/San Francisco case has taken some weird turns. It was originally filed in California state court, but the defendant companies successfully argued to have the case moved to federal court instead under the premise that the controlling authority for such cases was “federal common law.” However, once the case was in U.S. district court,  the companies moved to have it dismissed because federal common law provides no remedies for such violations — and the judge agreed.  The case has now been appealed, and you can read the plaintiffs’ opening brief to get a sense for the legal complexities and bizarre logic involved. The plaintiffs have asked the Ninth Circuit Court of Appeals to overturn both the dismissal and the transfer of the case to federal court, sending it back to the state courts for trial.

A long list of amicus briefs by other cities, counties and states, as well as environmental groups, have been filed with the Appeals Court in support of the plaintiffs. The defendants’ reply brief is due today (May 10). UPDATE: here are the briefs field by Chevron and the other defendants.

Meanwhile, Holmes is waiting for the appeals court’s ruling before he files a lawsuit, as the Ninth Circuit’s jurisdiction includes Seattle and its decision on where such cases may be filed will be binding here as well. If it finds for the cities, then he will most likely file in state courts; if it finds for the defendant companies, he will need to work much harder to find a successful path to sue.

In many ways this case has a similar feel to the piling-on of cities, counties and states suing the opioid pharmaceutical companies for aggressively and misleadingly marketing their product despite knowing their highly addictive nature — and thereby contributing to the opioid crisis in the United States. Seattle has joined that effort as well, which has been consolidated into a single case that is being heard in federal court in Ohio — and will take years to work its way through to conclusion.