San Francisco, Oakland take global warming lawsuit to 9th Circuit

Two Bay Area cities are asking the 9th U.S. Circuit Court of Appeals to revive their lawsuit against five of the world's largest oil companies, seeking to hold them liable for global warming under California's public nuisance laws.

U.S. District Judge William Alsup threw out the lawsuit last year after the corporate defendants removed the case to federal court.

The San Francisco-based judge said in June allowing the lawsuit to continue would violate the separation of powers. He added that global warming was an international issue, too large in scope to decide in the courts.

"[T]here are sound reasons why regulation of the worldwide problem of global warming should be determined by our political branches, not by our judiciary," Alsup wrote in his order dismissing the case.

But attorneys for San Francisco and Oakland asked the 9th Circuit Wednesday to reverse Alsup's ruling, arguing he was wrong to conclude the public nuisance claims were governed by federal law and would raise foreign policy issues.

"The court got it doubly wrong," Michael Rubin, a partner at Altshuler Berzon LLP who represents the city attorney's offices for Oakland and San Francisco, wrote in the appellate brief. People v. BP P.L.C., 18-16663 (9th Cir., filed Oct. 20, 2017).

The cities' attorneys also said Alsup erred by declining to exercise personal jurisdiction over four of the corporate defendants.

First filed in superior court, the case is one of several seeking to hold oil companies responsible for rising carbon emissions.

San Francisco and Oakland sought abatement funds to pay for damage to city properties they said were caused by rising sea levels caused by climate change. Such damage, they said, violated California's public nuisance laws. Damages are in the tens of billions, they estimated.

They argued oil giants Chevron Corp., ConocoPhillips Co., Exxon Mobil Corp., BP PLC and Royal Dutch Shell PLC knew of the climate harms used by fossil fuels for decades but continued to promote and sell their products regardless.

"These fossil fuel companies made money hand over fist, knowing they were putting our cities at risk," San Francisco City Attorney Dennis Herrera said in a statement Thursday. "Now they want taxpayers to foot the bill while they walk away with the profits."

Attorneys from Arnold & Porter LLP, Susman Godfrey LLP, Gibson, Dunn & Crutcher LLP, King & Spalding LLP, Bartlit Beck LLP, Paul, Weiss, Rifkind, Wharton & Garrison LLP, O'Melveny & Myers LLP, Munger, Tolles & Olson LLP, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. are defending the five oil companies, including current Munger partner and 9th Circuit nominee Daniel P. Collins.

Theodore J. Boutrous, Jr., a Gibson Dunn partner who represents Chevron, did not immediately respond to a request for comment Thursday.