Green Groups Stunned by Knowledgable Judge
by Erin Hawley
It was supposed to be a big day for climate change activists. A federal judge had requested a tutorial on climate change and global warming. The activists were going to have their day in court. That day, however, concluded with an irritated federal judge, leading plaintiffs to hastily file an amended complaint.
Last year, two California cities, San Francisco and Oakland, aided by a well-funded plaintiffs' law firm, filed a massive lawsuit against five American oil companies. These cities allege that the oil companies knew about the dangers of global warming and nevertheless continued to market and sell their petroleum products.
These lawsuits are not an effort to force oil companies to accept that human activity impacts global warming—the oil companies have already publicly recognized this. Nor do the lawsuits request that the oil companies stop selling their products. Rather, they are about the thing lawsuits are often about: money. The plaintiffs have requested funds for their cities to finance infrastructure, and of course, attorneys' fees.
The cities base their claims on public nuisance law—the plaintiff bar's most recent darling. The original complaint is long on allegations—nearly 40 pages—but remarkably short on the law—just over one page. This is not for want of trying. Historically, a public nuisance cause of action required criminalactivity. Yet plaintiffs' attorneys target activity that was and is sanctioned by every state and the federal government. Indeed, states and localities often offer tax and other incentives to induce exploration and investment in their local economies.
The climate change hearing revealed the slender reed of plaintiffs' case. Although the cities claim that the oil companies contributed to a global warming-induced sea level rise presently harming San Francisco and Oakland, a recent bond prospective from San Francisco asserts that the city was "unable to predict whether sea level rise or other impacts of climate change or flooding from a major storm will occur."
Even more critically, Judge Alsup expressed dismay at the plaintiffs' fast and loose treatment of the facts. The plaintiffs alleged a "smoking gun" document that would prove liability. When the judge learned that this document was nothing more than an internal summary of a publicly available report, he hit the roof.
Judge Alsup chastised plaintiffs, explaining that he had read the lawsuit to allege the existence of "a conspiratorial document within the defendants about how they knew good and well that global warming was right around the corner." The judge continued, "I said: 'OK, that's going to be a big thing. I want to see it.' Well, it turned out it wasn't quite that. What it was, was a slide show that somebody had gone to the IPCC and was reporting on what the IPCC had reported, and that was it. Nothing more. So [the companies] were on notice of what [the] IPCC said from that document, but it's hard to say that they were secretly aware. By that point they knew. Everybody knew everything in the IPCC."
Judge Alsup then gave the plaintiffs a chance to respond, asking their attorney, "Is there anything you want to say." Plaintiffs' counsel said "No." And Judge Alsup adjourned the hearing. Just a few days ago, however, the plaintiffs finally responded. They amended their complaint to clarify that the alleged smoking-gun document merely "summarized findings" of the publicly available IPCC report.
Judge Alsup will hear argument on defendants' motion to dismiss the amended complaint on May 24th.