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California Climate Change Suit Returns to State Court – JD Supra

In City of San Mateo, et al v. Chevron Corporation, et al, six California jurisdictions sued 13 energy company defendants for global warming-related claims.

The question in this round was whether the federal district court was wrong in remanding the suit to state court after it had been removed to federal court by the defendants. The district court was correct. That court lacked subject matter jurisdiction under any of the grounds asserted by the defendants.

The court received amicus curiae briefs from many different pro- and anti-fossil fuel organizations and jurisdictions. This post is not a report on the nuances of the removal and remand process, but rather to describe the nature of the lawsuit, which is similar to others against energy companies.

The allegations are that the following actions of the energy companies “ … is a substantial factor in causing the increase in global mean temperature and consequent increase in global mean sea surface height.”:

  • “extraction, refining and/or formulation of fossil fuel products;
  • introduction of fossil fuel products into the stream of commerce;
  • wrongful promotion of the fossil fuel products;
  • concealment of known hazards associated with use of these products; and
  • failure to pursue less hazardous alternatives available to them … “

The plaintiffs allege that they ”have already incurred and will foreseeably continue to incur, injuries and damages because of sea level rise caused by [the energy companies’] conduct.” Among other examples of damage, they cite:

  • flooding that causes injury and damages to real property and its improvements;
  • flooding that prevents the free passage on, use of, and normal enjoyment of real property or permanently [destroys] it;
  • Surfers Beach near the city of Half Moon Bay has lost 140 feet of the accessible beach since 1964 due to erosion which has been exacerbated and substantially contributed to by sea level rise and increased extreme weather;
  • infrastructural repair and reinforcement of roads and beach access.

The causes of action (all based on California state law):

  • public and private nuisance,
  • strict liability for failure to warn,
  • strict liability for design defects,
  • negligence,
  • negligent failure to warn, and
  • trespass.

The energy companies removed because the claims:

  • raised disputed and substantial federal issues,
  • were preempted by federal law,
  • arose on “federal enclaves”,
  • arise out of actions and operations on the outer continental shelf,
  • arise from actions taken pursuant to a federal officers’ directions,
  • are related to bankruptcy cases, and (one would think),
  • “get us the hell away from the wrath of a ‘fair and impartial’ local California judge and jury”.

All were unsuccessful. As the courts are fond of saying, “The plaintiff is master of his pleadings.”

This round is over; expect the case to be aggressively contested for years to come.

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