DOJ to join oil defendants in 9th Circuit climate case

The U.S. Department of Justice will lend vocal support to several oil industry titans in a climate change challenge set for argument before the 9th U.S. Circuit Court of Appeals in February.

The circuit granted Wednesday a request from the department's Environment and Natural Resources Division to share argument time with counsel for BP PLC and other industry defendants, whom Oakland and San Francisco -- among several California municipalities -- sued in 2017 seeking damages for local environmental impacts related to fossil fuel burning, like rising sea levels and degraded air quality.

The government will argue the plaintiffs' cause of action -- premised on a common law nuisance theory -- is preempted by federal statute, the Clean Air Act. That's especially true, the DOJ's amicus brief asserts, because the plaintiffs' effort seeks to curb or penalize fossil fuel emissions occurring outside of California and, perhaps, the country.

"Cities' nuisance claims would regulate conduct taking place almost entirely outside of the State of California," the government's brief reads. "Those claims are preempted by the CAA."

U.S. District Judge William H. Alsup took a similar view when he described the scope of the cities' claim as "breathtaking" in a dismissal order last summer.

"It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales," Alsup wrote.

The plaintiff cities contend their suit focuses on local adverse impacts of fossil fuel burning and isn't aiming to regulate emissions elsewhere.

"By erroneously characterizing the people's public nuisance claims as an attempt to regulate worldwide emissions rather than simply to abate the localized effects of defendants' tortious conduct, the district court improperly stripped the people of their traditional sovereign authority to redress local harms," reads the cities' appellate brief. City of Oakland, et al. v. BP PLC, et al., 18-16663 (9th Cir., filed Sept. 4, 2018).

It added, "Defendants have known for decades that the continued burning of fossil fuels would increase global temperatures and cause devastating impacts on coastal communities like Oakland and San Francisco."

The DOJ's environmental office is headed by Assistant Attorney General Jeffrey Bossert Clark, who previously defended BP in litigation that followed the 2010 Deepwater Horizon oil spill in the Gulf of Mexico.

Arguments in the appeal will take place Feb. 5 during a morning session in Pasadena.