Shannon S. Broome

California cities and counties seeking to hold the oil and gas industry liable for the costs of climate change may represent the onset of a massive legal fight on the scale of the big tobacco cases of the 1990s. Broome is at the heart of the fray, defending client Marathon Petroleum Corp. as the litigation moves through its early stages.

“The plaintiffs’ legal theory is that this is a dangerous product,” said Broome, who serves as managing partner at Hunton Andrews Kurth’s San Francisco office and heads the firm’s California environmental practice. She explained the U.S. Supreme Court ruled in 2011 in American Electric Power Co. v. Connecticut that the federal Clean Air Act displaced any federal common-law right to seek abatement of emissions from fossil-fuel fired power plants.

“So the plaintiffs bar is trying to artfully plead around AEP to stylize this a product liability issue like the tobacco cases,” Broome said. Those cases over states’ efforts to recover tobacco-related health care costs ended with a 1998 master settlement agreement in which the four largest tobacco companies agreed to pay a minimum of $206 billion over 25 years.

In the new petroleum cases, several California counties and cities sued major oil and gas companies including Broome’s client Marathon Petroleum, claiming in a novel legal theory that its marketing and promotion of petroleum products created a public nuisance of climate change. They sought damages for sea level rise and other climate impacts.

Broome said 15 state attorneys general — not including California’s — recently filed a friend of the court brief on the defendants’ side, asserting that to allow the cases to proceed would disrupt state regulation and oversight of the industry. Boulder, Colorado has jumped on board and in California other cities and counties will potentially file. The lead case Broome is defending is County of San Mateo v. Chevron Corp., 3:17-cv-4929 (N.D. Cal., filed July 17, 2017). One federal judge remanded the cases Broome is involved in to state court; a separate set of cases before a different federal judge remains in federal court. Broome is currently appealing that inconsistency to the 9th U.S. Circuit Court of Appeals.

Broome believes the Clean Air Act will eventually be found to displace the claims against the petroleum industry. “Plaintiffs firms are viewing potentially large fees,” she said. “I feel fortunate to be involved in the next big issue. I just wish it wasn’t so potentially harmful to my clients.”

— John Roemer