On Thursday, Judge John Keenan dismissed New York City’s climate damages law suit against five oil majors. The basis for the decision was the same as in last month’s decision dismissing similar claims in California:
- Because climate change is an interstate and international problem, such claims cannot be resolved under state law; if such claims are valid, they must be brought under federal common law.
- Under AEP v. Connecticut and Kivalina v. ExxonMobil, Federal common law has been displaced by the Clean Air Act, because the CAA “speaks directly to the question at issue.”
- The City’s claims interfere with the separation of powers and the conduct of foreign policy, because the claims relate to international emissions of greenhouse gases.
That’s pretty much it. Two more points. First, as in California, the City argued that its claims were not displaced by the CAA, because they related to the oil companies’ production and marketing of fossil fuels, not the emissions that resulted from their combustion. The Court wasn’t buying it:
Regardless of the manner in which the City frames its claims in its opposition brief, the amended complaint makes clear that the City is seeking damages for global-warming related injuries resulting from greenhouse gas emissions, and not only the production of Defendants’ fossil fuels.
Second, the City argued that, if federal claims are displaced, then it should be able to bring state law claims. However, as the Court noted:
The City has not sued under New York law for claims related to the production of fossil fuels in New York. The City brings claims for damages caused by global greenhouse gas emissions resulting from the combustion of Defendants’ fossil fuels, which are produced and used “worldwide.”
Case dismissed. I expect plaintiffs to keep trying, certainly as long as the administration blocks federal regulatory action. Still, it’s hard to see the path forward for these cases at this point. Only two strikes, but the plaintiffs seem to be out for now.