Judge William Alsup Dismisses Oakland, San Francisco Climate Change Lawsuit – Full Text Of Ruling

Judge Alsup
Judge Alsup

On Monday, made a ruling that shocked some, but was expected from the perspective of legal scholars. The San Francisco Federal Judge dismissed the lawsuit brought by the and the . Here’s the full text of that decision, below.

Zennie62Media Has Entire Judge’s Ruling

Here’s Judge Alsup’s entire 16-page ruling. As a note, this was formatted in such a way that the numbers on the page transferred from text were removed. To preserve the page – specific placement of entries, the headers sentences that start with the word “Case” were preserved.

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

, a Municipal Corporation, and
THE PEOPLE OF THE STATE OF CALIFORNIA,
acting by and through Oakland City Attorney
BARBARA J. PARKER,

and

Plaintiffs,

No. C 17-06011 WHA

No. C 17-06012 WHA

v.
BP P.L.C., a public limited company of England and
Wales, CHEVRON CORPORATION, a Delaware
corporation, CONOCOPHILLIPS, a Delaware
corporation, EXXON MOBIL CORPORATION, a
New Jersey corporation, ROYAL DUTCH SHELL
PLC, a public limited company of England and
Wales, and DOES 1 through 10,

ORDER GRANTING
MOTION TO DISMISS
AMENDED COMPLAINTS

Defendants

AND RELATED CASE.

INTRODUCTION
In these “global warming” actions asserting claims for public nuisance, defendants move
to dismiss for failure to state a claim. For the following reasons, the motion is GRANTED.

STATEMENT
These actions arise out of a vital function of our atmosphere — its thermostat function —

that is, keeping the temperature of our planet within a habitable range. The atmosphere hosts

water vapor and certain trace gases without which heat at Earth’s surface would excessively
radiate into space, leaving our planet too cold for life. One of those trace gases is carbon dioxide,

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 2 of 16

a gas produced by, among other things, animal and human respiration, volcanoes and, more

significantly here, combustion of fossil fuels like oil and natural gas. As heat radiates skyward,

some of it passes close enough to molecules of carbon dioxide to be absorbed. These molecules

then re-radiate the energy in all directions, including back toward Earth’s surface. The more

carbon dioxide in the air, the more this absorption and re-radiation process warms the surface. It

turns out that even trace amounts of carbon dioxide in the air suffice to warm the atmosphere.1

For the Northern District of California

United States District Court

The science dates back 120 years. In 1896, building on the findings by Irish scientist (and

mountaineer) John Tyndall that carbon dioxide absorbed heat (whereas oxygen and nitrogen did

not), Swedish scientist Svante Arrhenius published calculations that connected increases in the

air’s carbon dioxide with increased global temperatures. Arrhenius, however, had no concern

over global warming. Rather, his focus remained solving the mystery of the ice ages and their

causes (Amd. Compls. ¶ 76; Svante Arrhenius, On the Influence of Carbonic Acid in the Air Upon

the Temperature of the Ground, 41 Phil. Mag. & J. Sci. 237 (1896)).2

In 1938, scientist Guy Stewart Callendar published graphs plotting the warming of Earth

using temperature records from around the world. One graph showed a 0.07 Centigrade rise in

the mean temperatures of the planet from 1910 to 1930, while another showed a six to

eight-percent rise in carbon dioxide in the air over the same period. Given Tyndall’s earlier

finding, Callendar concluded that one rise had caused the other, namely that more carbon dioxide

had trapped more heat and caused the temperature to rise. Callendar, like Arrhenius, was not

alarmed over the possibility of global warming. Guy S. Callendar, The Artificial Production of

Carbon Dioxide and Its Influence on Temperature, 64 Q. J. Royal Meteorological Soc’y 223

(1938).

Our case involves all greenhouse gases, including methane, but “[c]arbon dioxide is by far the most
important greenhouse gas” (Amd. Compls. ¶ 74).

In 1859–1861, Tyndall discovered that the main gases in the atmosphere, nitrogen and oxygen, were
transparent to infrared radiation but that carbon dioxide was opaque, meaning carbon dioxide absorbed infrared
radiation. Tyndall recognized that carbon dioxide kept Earth warmer than would be the case without it. John
Tyndall, On the Absorption and Radiation of Heat by Gases and Vapours, and on the Physical Connexion of
Radiation, Absorption, and Conduction, 151 Phil. Trans. Royal Soc’y London 1 (1861).

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 3 of 16

then prevailing view that the oceans would absorb excessive airborne carbon dioxide and thus

reduce the risk of an atmospheric buildup of carbon dioxide. Referring to the ongoing

combustion of fossil fuels and release of carbon dioxide, they concluded: “[h]uman beings are

now carrying out a large scale geophysical experiment of a kind that could not have happened in

the past nor be reproduced in the future” (Amd. Compls. ¶ 77).

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In 1957, oceanographer Roger Revelle and chemist Hans Suess published a critique of a

Revelle later obtained funding to measure the buildup of carbon dioxide in the

atmosphere, arranging for scientist Charles David Keeling to reside on Mauna Loa in Hawaii to

measure and graph the real-time concentrations of carbon dioxide. This project produced the

famous Keeling Curve, a graph that shows a steady rise in atmospheric carbon dioxide, year after

year, like clockwork (id. ¶ 78; see also NOAA, EARTH SYSTEMS RESEARCH LABORATORY,

GLOBAL MONITORING DIVISION, https://www.esrl.noaa.gov/gmd/ccgg/trends/full.html (last

visited June 15, 2018)).

From this brief history up to the Sixties, it would be wrong to conclude that scientists had

sounded alarm bells for global warming. Arrhenius was more concerned with global cooling than

warming. Revelle said a large-scale, one-time experiment was in progress, but he sounded no

alarm bells at the time.

But alarm bells over eventually did sound. In 1988, the United Nations

established the Intergovernmental Panel on (“IPCC”). Its main objective was to

prepare — based on the best available scientific information — periodic assessments regarding all

aspects of , with a view of formulating realistic response strategies. The IPCC had

three working groups: Working Group I assessed the scientific aspects of ,

Working Group II assessed the vulnerability and adaptation of socioeconomic and natural systems

to climate change, and Working Group III assessed the mitigation options for limiting greenhouse

gas emissions (Amd. Compls. ¶¶ 82–86).

The IPCC completed its first assessment report in 1990. The report made a persuasive

case for anthropogenic interference with the climate system, and each subsequent report (about

five to six years apart) incorporated advancements in measurements, observations, and modeling

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— and each presented a more precise picture of how our climate has changed, and what has

changed it. The fifth assessment report, released in 2013, was abundantly clear:

Warming of the climate system is unequivocal, and since the 1950s, many of the
observed changes are unprecedented over decades and millennia. The atmosphere
and ocean have warmed, the amounts of snow and ice have diminished, sea level
has risen, and the concentrations of greenhouse gases have increased.

The report was also clear as to the cause, stating that it was “extremely likely” that “human

influence has been the dominant cause of the observed warming since the mid-20th century”

(ibid.).3

The science acknowledges that causes beyond the burning of fossil fuels are also at work.

Deforestation has been and remains a significant contributor to the rise in carbon dioxide. Others

other contributions, climate scientists are in vast consensus that the combustion of fossil fuels has,
For the Northern District of California

United States District Court

include volcanoes and wildfires in greater numbers. Nevertheless, even acknowledging these
in and of itself, materially increased carbon dioxide levels, which in turn has materially increased
the median temperature of the planet, which in turn has accelerated ice melt and raised (and
continues to raise) the sea level.

In sum, in the last 120 years, the amount of carbon dioxide (and methane) in the air has
increased, with most of the increase having come in recent decades. During that time, the median
temperature of Earth has increased 1.8 degrees Fahrenheit. Glaciers around the world have been
shrinking. Ice sheets over Greenland and Antarctica have been melting. The sea level has risen
by about seven centimeters since 1993 (about seven to eight inches since 1900). As our globe
warms and the seas rise, coastal lands in Oakland and San Francisco will, without erection of
seawalls and other infrastructure, eventually become submerged by the navigable waters of the
United States (id. ¶¶ 86–90, 124–36).

Defendants Chevron Corporation, Exxon Mobil Corporation, BP p.l.c., Royal Dutch Shell
plc, and ConocoPhillips are the five largest investor-owned (as opposed to state-owned)
producers of fossil fuels in the world, as measured by the greenhouse gas emissions allegedly
generated from the use of the fossil fuels they have produced. They are the first (Chevron),
The IPCC anticipates the release of a special report in October 2018 and the sixth assessment report

in 2021.

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 5 of 16
second (Exxon), fourth (BP), sixth (Shell) and ninth (ConocoPhillips) largest cumulative
producers of fossil fuels worldwide and are collectively responsible for over eleven percent of all
carbon dioxide and methane pollution that has accumulated in the atmosphere since the Industrial
Revolution (id. ¶ 94).

Defendants have allegedly long known the threat fossil fuels pose to the global climate.
Nonetheless, they continued to extract and produce them in massive amounts while engaging in
widespread advertising and communications campaigns meant to promote the sale of fossil fuels.

These campaigns portrayed fossil fuels as environmentally responsible and essential to human

well-being and downplayed the risks of global warming by emphasizing the uncertainties of
climate science or attacking the credibility of climate scientists (id. ¶¶ 95–123).

For the Northern District of California

United States District Court

In September 2017, Oakland and San Francisco commenced these actions in state court.

The original complaints each asserted a single claim for public nuisance under California law.

After defendants removed the actions to this district, an order dated February 27, 2018, denied

plaintiffs’ motions to remand (Dkt. Nos. 1, 134).4

Given the international scope of plaintiffs’ claims and that the very instrumentality of the

anticipated coastal flooding is uniquely federal — namely, the navigable waters of the United

States — one threshold issue presented by these cases was whether federal common law should

govern (rather than state law). The February 27 order concluded:

Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a
global complex of geophysical cause and effect involving all nations of the planet
(and the oceans and atmosphere). It necessarily involves the relationships between
the United States and all other nations. It demands to be governed by as universal
a rule of apportioning responsibility as is available. This order does not address
whether (or not) plaintiffs have stated claims for relief. But plaintiffs’ claims, if
any, are governed by federal common law. Federal jurisdiction is therefore proper.

Plaintiffs have since amended their complaints to plead a separate claim for public

nuisance under federal common law. The amended complaints also substituted defendant

ConocoPhillips for its subsidiary, ConocoPhillips Company, and added the and

the as plaintiffs to the federal nuisance claims, among other

All docket numbers herein refer to the docket in Case No. 17-cv-06011-WHA.

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 6 of 16

additions. On March 21, to standing room only, counsel and their experts conducted a science

tutorial for the undersigned judge. Defendants now move to dismiss the amended complaints for

failure to state a claim (Dkt. Nos. 174, 199, 225). This order follows full briefing, oral argument,

and supplemental briefing.

ANALYSIS

warming and ocean rise and will continue to do so, and that eventually the navigable waters of the

United States will intrude upon Oakland and San Francisco. The issue is a legal one — whether

these producers of fossil fuels should pay for anticipated harm that will eventually flow from a

rise in sea level.

For the Northern District of California

United States District Court

The issue is not over science. All parties agree that fossil fuels have led to global

The sole claim for relief is for “public nuisance,” a claim governed by federal common

law. The specific nuisance is global-warming induced sea level rise. Plaintiffs’ theory, to repeat,

is that defendants’ sale of fossil fuels leads to their eventual combustion, which leads to more

carbon dioxide in the atmosphere, which leads to more global warming and consequent ocean

rise.

The scope of plaintiffs’ theory is breathtaking. It would reach the sale of fossil fuels

anywhere in the world, including all past and otherwise lawful sales, where the seller knew that

the combustion of fossil fuels contributed to the phenomenon of global warming. While these

actions are brought against the first, second, fourth, sixth and ninth largest producers of fossil

fuels, anyone who supplied fossil fuels with knowledge of the problem would be liable. At one
point, counsel seemed to limit liability to those who had promoted allegedly phony science to
deny climate change. But at oral argument, plaintiffs’ counsel clarified that any such promotion
remained merely a “plus factor.” Their theory rests on the sweeping proposition that otherwise

At the Court’s invitation, the United States submitted an amicus brief on the question of whether or
not (and the extent to which) federal common law affords the relief requested by plaintiffs. The Attorneys
General of eighteen States also submitted amicus briefs (Dkt. Nos. 224, 236, 245).

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 7 of 16

lawful and everyday sales of fossil fuels, combined with an awareness that greenhouse gas

emissions lead to increased global temperatures, constitute a public nuisance.6

A public nuisance under federal common law, both sides agree, is an “unreasonable

interference with a right common to the general public,” as set forth in the Restatement (Second)

of Torts § 821B(1) (1979). Putting aside momentarily the important issue of displacement, a

successful public nuisance claim therefore requires proof that a defendant’s activity unreasonably

interferes with the use or enjoyment of a public right and thereby causes the public-at-large

substantial and widespread harm. Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849,

855 (9th Cir. 2012) (citing Missouri v. Illinois, 200 U.S. 496, 521 (1906)).

For the Northern District of California

United States District Court

No plaintiff has ever succeeded in bringing a nuisance claim based on global warming.

But courts that have addressed such claims, as well as the parties here, have turned to the

Restatement to analyze whether the common law tort of nuisance can be applied in this context.

Section 821B of the Restatement sets forth three tests for whether an interference with a
public right is unreasonable:

(a) Whether the conduct involves a significant interference with the public
health, the public safety, the public peace, the public comfort or the public
convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or
administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a
permanent or long-lasting effect, and, as the actor knows or has reason to
know, has a significant effect upon the public right.

To be held liable for a public nuisance, a defendant’s interference with a public right can

either be intentional, or unintentional and otherwise actionable under principles controlling

liability for negligence, recklessness, or abnormally dangerous activities. Restatement § 821B

This clarification seems to have been aimed at avoiding the Noerr-Pennington doctrine and other free
speech issues inherent in predicating liability on publications designed to influence public policy. See E. R. R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington,
381 U.S. 657 (1965).

Although plaintiffs analogize these actions to earlier lawsuits against “Big Tobacco,” only one court
has ever sustained a public nuisance theory against a tobacco company. Evans v. Lorillard Tobacco Co., No.
04-2840A, 2007 WL 796175 (Mass. Super. Ct. Feb. 7, 2007). Every other court to reach the issue, however,
has rejected a public nuisance theory. See, e.g., Allegheny Gen. Hosp. v. Phillip Morris, 228 F.3d 429, 446 (3d
Cir. 2000); Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 972–73 (E.D. Tex. 1997).

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 8 of 16

cmt. e. Where, as alleged here, the interference is intentional, “it must also be unreasonable.”

Ibid. This determination, in turn, involves “the weighing of the gravity of the harm against the

utility of the conduct,” guidance for which is set forth in Sections 826 through 831 of the

Restatement. Ibid. If the interference was unintentional, the principles governing negligence,

recklessness, or abnormally dangerous activities also “embody in some degree the concept of

unreasonableness.” Ibid.

For the Northern District of California

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The commentary to Sections 826 through 831 explain, among other things, that “in

determining whether the gravity of the interference with the public right outweighs the utility of

the actor’s conduct, it is necessary to consider the extent and character of the interference, the
social value that the law attaches to it, the character of the locality involved and the burden of
avoiding the harm placed upon members of the public.” Id. at § 827 cmt. a. Relatedly, in

evaluating the utility of the conduct, “it is necessary to consider the social value that the law
attaches to the primary purpose of the conduct, the suitability of the conduct to the character of
the locality and the impracticality of preventing or avoiding the invasion.” Id. at § 828 cmt. a.
With respect to balancing the social utility against the gravity of the anticipated harm, it is
true that carbon dioxide released from fossil fuels has caused (and will continue to cause) global

warming. But against that negative, we must weigh this positive: our industrial revolution and the
development of our modern world has literally been fueled by oil and coal. Without those fuels,

virtually all of our monumental progress would have been impossible. All of us have benefitted.

Having reaped the benefit of that historic progress, would it really be fair to now ignore our own
responsibility in the use of fossil fuels and place the blame for global warming on those who

supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of

fossil fuels was unreasonable?

This order recognizes but does not resolve these questions, for there is a more direct
resolution from the Supreme Court and our court of appeals, next considered.

Another problem involves timing. Although plaintiffs allege that global warming has already caused
sea level rise, Oakland and San Francisco have yet to build a seawall or other infrastructure for which they seek
reimbursement. The United States Army Corps of Engineers has already proposed projects to address the
problem and is likely to help protect plaintiffs’ property and residents. Oakland and San Francisco may

For the Northern District of California

United States District Court

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 9 of 16

DISPLACEMENT.

The Supreme Court has held that the Clean Air Act and the EPA’s authority thereunder to

set emission standards have displaced federal common law nuisance claims to enjoin a

defendant’s emission of greenhouse gases. Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S.

410 (2011) (“AEP”). In Kivalina, our court of appeals extended the Clean Air Act displacement

rule to claims for damages based on an oil producer’s past emissions. 696 F.3d 849. In other

words, Congress has vested in the EPA the problem of greenhouse gases and has given it plenary
authority to solve the problem at the point of emissions.

Here, by contrast, defendants stand accused, not for their own emissions of greenhouse
gases, but for their sale of fossil fuels to those who eventually burn the fuel. Is this distinction
enough to avoid displacement under AEP and Kivalina? The harm alleged by our plaintiffs
remains a harm caused by fossil fuel emissions, not the mere extraction or even sale of fossil

fuels. This order holds that, were this the only distinction, AEP and Kivalina would still apply. If
an oil producer cannot be sued under the federal common law for their own emissions, a fortiori
they cannot be sued for someone else’s.

The amended complaints, however, add another dimension not addressed in AEP or

Kivalina, namely that the conduct and emissions contributing to the nuisance arise outside the
United States, although their ill effects reach within the United States. Specifically, emissions
from the use of defendants’ fossil fuels abroad send greenhouse gases into our atmosphere, warm
our globe, melt its ice, raise sea levels, and, via the navigable waters of the United States, threaten
coastal flooding in Oakland and San Francisco. The February 27 order concluded that because
plaintiffs’ nuisance claims centered on defendants’ placement of fossil fuels into the flow of

international commerce, and because foreign emissions are out of the EPA and Clean Air Act’s
reach, the Clean Air Act did not necessarily displace plaintiffs’ federal common law claims.
eventually incur expense over and above federal outlays, but that is neither certain nor imminent. If and when
those expense items are actually incurred, defendants will still be in business and will be good for any liability.
Requiring them to pay now into an anticipatory “abatement fund” would be like walking to the pay window
before the race is over.

For the Northern District of California

United States District Court

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 10 of 16

Nevertheless, these claims are foreclosed by the need for federal courts to defer to the legislative

and executive branches when it comes to such international problems, as now explained.
INTERFERENCE WITH SEPARATION OF POWERS AND FOREIGN POLICY.

The Supreme Court has given us caution in formulating new claims under federal common

law. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Sosa and earlier decisions “cast doubt on

the authority of courts to extend or create private causes of action even in the realm of domestic

law, where [the Supreme Court] has ‘recently and repeatedly said that a decision to create a

private right of action is one better left to legislative judgment in the great majority of cases.’”

Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018) (citing Sosa, 542 U.S. at 727). The

Supreme Court has also “remain[ed] mindful that it does not have the creative power akin to that

vested in Congress.” AEP, 564 U.S. at 422. One consideration weighing in favor of judicial

caution is where “modern indications of congressional understanding of the judicial role in the

field have not affirmatively encouraged greater judicial creativity.” Sosa, 542 U.S. at 728.

As explained above, plaintiffs’ claims require a balancing of policy concerns — including

the harmful effects of greenhouse gas emissions, our industrialized society’s dependence on fossil

fuels, and national security. Through the Clean Air Act, Congress “entrust[ed] such complex

balancing to the EPA in the first instance, in combination with state regulators.” AEP, 564 U.S. at

427. And, not long ago, the problem wasn’t too much oil, but too little, and our national policy

emphasized the urgency of reducing dependence on foreign oil. In enacting the Energy Policy

Act of 1992, for example, Congress expressed that it was “the goal of the United States in

carrying out energy supply and energy conservation research and development . . . to strengthen

national energy security by reducing dependence on imported oil.” 42 U.S.C. § 13401. In our

industrialized and modern society, we needed (and still need) oil and gas to fuel power plants,

vehicles, planes, trains, ships, equipment, homes and factories. Our industrial revolution and our

modern nation, to repeat, have been fueled by fossil fuels.

In light of AEP, plaintiffs shift their focus to sales of fossil fuels worldwide, beyond the

reach of the EPA and the Clean Air Act. This shift to foreign lands, however, runs counter to

another cautionary restriction, the presumption against extraterritoriality. The Supreme Court has

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Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 11 of 16

cautioned that where recognizing a new claim for relief under federal common law could affect

foreign relations, courts should be “particularly wary of impinging on the discretion of the

Legislative and Executive Branches in managing foreign affairs.” Sosa, 542 U.S. at 727. In

Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), the Supreme Court held that the

principles underlying the presumption against extraterritoriality also constrain courts considering

claims brought under the Alien Tort Statute. The presumption “serves to protect against

unintended clashes between our laws and those of other nations” and “helps ensure that the

Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy

consequences not clearly intended by the political branches.” Id. at 115–16 (citations and internal

quotation marks omitted). While courts “typically apply the presumption to discern whether an

Act of Congress regulating conduct applies abroad,” Kiobel recognized that “the danger of

unwarranted judicial interference in the conduct of foreign policy is magnified” where “the

question is not what Congress has done but instead what courts may do.” Id. at 116. And where

a claim “reaches conduct within the territory of another sovereign,” concerns of “unwarranted

judicial interference” in foreign policy “are all the more pressing.” Id. at 117. Importantly, “[t]he

political branches, not the Judiciary, have the responsibility and institutional capacity to weigh

foreign-policy concerns.” Jesner, 138 S. Ct. at 1403.

Here, plaintiffs seek to impose liability on five companies for their production and sale of

fossil fuels worldwide. These claims — through which plaintiffs request billions of dollars to

abate the localized effects of an inherently global phenomenon — undoubtedly implicate the

interests of countless governments, both foreign and domestic. The challenged conduct is, as far

as the complaints allege, lawful in every nation. And, as the United States aptly notes, many

foreign governments actively support the very activities targeted by plaintiffs’ claims (USA

Amicus Br. at 18). Nevertheless, plaintiffs would have a single judge or jury in California impose

an abatement fund as a result of such overseas behavior. Because this relief would effectively

allow plaintiffs to govern conduct and control energy policy on foreign soil, we must exercise

great caution.

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 12 of 16

also engaged in active discussions with other countries as to whether and how climate change

should be addressed through a coordinated framework (ibid.). The Montreal Protocol on

Substances that Deplete the Ozone Layer, signed by 197 countries to eliminate

chlorofluorocarbons (CFCs), demonstrates that global cooperation can work, even if getting there

remains difficult. Everyone has contributed to the problem of global warming and everyone will

suffer the consequences — the classic scenario for a legislative or international solution.

For the Northern District of California

United States District Court

Global warming is already the subject of international agreements. The United States is

This order fully accepts the vast scientific consensus that the combustion of fossil fuels
has materially increased atmospheric carbon dioxide levels, which in turn has increased the

median temperature of the planet and accelerated sea level rise. But questions of how to

appropriately balance these worldwide negatives against the worldwide positives of the energy

itself, and of how to allocate the pluses and minuses among the nations of the world, demand the

expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.

Nuisance suits in various United States judicial districts regarding conduct worldwide are far less

likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.

Plaintiffs argue against this result on several grounds. First, plaintiffs argue that

adjudication of plaintiffs’ claims would not infringe on the role of the political branches because
undersigned judge need not weigh or consider the social utility of defendants’ conduct. The
commentary to Section 826 of the Restatement explains that in some scenarios harm may be “so
severe” that the conduct becomes unreasonable “as a matter of law,” and that in such situations
monetary recovery is available “regardless of the utility of the activity in the abstract.”
Restatement § 826 cmt. b. Plaintiffs similarly rely on Section 829A, which provides:
An intentional invasion of another’s interest in the use and enjoyment of land is
unreasonable if the harm resulting from the invasion is severe and greater than the
other should be required to bear without compensation.

Plaintiffs claim that the harm alleged in these actions is “undeniably severe” such that

global warming constitutes a nuisance as a matter of law. But in AEP, the Supreme Court
addressed public nuisance claims based on similar allegations of harm, and nonetheless cautioned
that policy questions concerning global warming require an “informed assessment of competing
Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 13 of 16
interests” and that “[a]long with the environmental benefit potentially achievable, our Nation’s
energy needs and the possibility of economic disruption must weigh in the balance.” 564 U.S. At 3 427.

For the Northern District of California

United States District Court

Plaintiffs next cite to Section 821B, comment i (entitled “Action for damages
distinguished from one for injunction”) which provides:
In determining whether to award damages, the court’s task is to decide whether it
is unreasonable to engage in the conduct without paying for the harm done.
Although a general activity may have great utility it may still be unreasonable to
inflict the harm without compensating for it. In an action for injunction the
question is whether the activity itself is so unreasonable that it must be stopped. It
may be reasonable to continue an important activity if payment is made for the
harm it is causing, but unreasonable to continue it without paying.
This question of reasonableness nevertheless falls squarely within the type of balancing
best left to Congress (or diplomacy). Judge Martin Jenkins rejected a similar argument in People

of the State of California v. General Motors Corp., No. 06-cv-05755, 2007 WL 2726871 (N.D.

Cal. Sept. 17, 2007). There, the State of California sued several automakers for contributing to

global warming. California argued that because it sought damages, resolution of its federal

common law public nuisance claim would not require the district court to determine whether the

defendants’ actions had been unreasonable, but rather whether the interference suffered by

California was unreasonable. Id. at *8. Judge Jenkins disagreed that this distinction would allow

him to avoid making policy determinations, explaining that “regardless of the relief sought, the

Court is left to make an initial decision as to what is unreasonable in the context of carbon dioxide
emissions.” Ibid. So too here.

Finally, plaintiffs point to Section 826, which provides:

An intentional invasion of another’s interest in the use and enjoyment of land is
unreasonable if (a) the gravity of the harm outweighs the utility of the actor’s
conduct, or (b) the harm caused by the conduct is serious and the financial burden
of compensating for this and similar harm to others would not make the
continuation of the conduct not feasible.

Plaintiffs claim that they can be compensated pursuant to subsection (b), which does not require

weighing the utility of defendants’ conduct. The commentary to this section is clear, however,

that “[i]f imposition of this financial burden would make continuation of the activity not feasible,

the weighing process for determining unreasonableness is similar to that in a suit for injunction.”

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Restatement § 826 cmt. f. In these actions alone, two plaintiffs seek billions of dollars each in the

form of an abatement fund. It seems a near certainty that judgments in favor of the plaintiffs who

have brought similar nuisance claims based on identical conduct (let alone those plaintiffs who

have yet to file suit) would make the continuation of defendants’ fossil fuel production “not

feasible.” This order accordingly disagrees that it could ignore the public benefits derived from

defendants’ conduct in adjudicating plaintiffs’ claims. In the aggregate, the adjustment of

conflicting pros and cons ought to be left to Congress or diplomacy.9

For the Northern District of California

United States District Court

Second, plaintiffs point to the Court of Appeals for the Second Circuit’s decision in AEP,
where the court held that a global-warming nuisance claim did not present non-justiciable

political questions, a conclusion affirmed by an equally-divided Supreme Court. AEP, 564 U.S.

at 420 n.6. As previously explained, however, AEP addressed different claims. To be sure, the

Second Circuit disagreed that it had been asked “to fashion a comprehensive and far-reaching

solution to global climate change, a task that arguably falls within the purview of the political

branches.” Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 325 (2d Cir. 2009), rev’d on other
grounds, 564 U.S. 410 (2011). But in doing so, the court highlighted that the plaintiffs there

sought only to limit emissions from six domestic coal-fired electricity plants, and that “[a]

decision by a single federal court concerning a common law of nuisance cause of action, brought

by domestic plaintiffs against domestic companies for domestic conduct, does not establish a
national or international emissions policy (assuming that emissions caps are even put into

place).” Ibid. (emphasis in original). Here, the claims are plainly not so limited.
Third, plaintiffs argue that Sosa and its progeny are not instructive because those

decisions arose in the context of the Alien Tort Statute. The Alien Tort Statute simply provides

that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. §
The parties have identified seven similar actions brought by cities and counties across the country.
Cty. of San Mateo v. Chevron Corp., et al., No. 17-cv-4929 (N.D. Cal.); City of Imperial Beach v. Chevron
Corp., et al., No. 17-cv-4934 (N.D. Cal.); Cty. of Marin v. Chevron Corp., et al., No. 17-cv-4935 (N.D. Cal.);
Cty. of Santa Cruz v. Chevron Corp., et al., No. 18-cv-450 (N.D. Cal.); City of Santa Cruz v. Chevron Corp., et
al., No. 18-cv-458 (N.D. Cal.); City of Richmond v. Chevron Corp., et al., No. 18-cv-732 (N.D. Cal.); City of
New York v. BP P.L.C., et al., No. 18-cv-182 (S.D.N.Y.); King Cty. v. BP P.L.C., et al., No. 18-2-11859-0 (Sup.
Ct. King Cty., Wash.).

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 15 of 16
1350. “The statute provides district courts with jurisdiction to hear certain claims, but does not

expressly provide any causes of action.” Kiobel, 569 U.S. at 114–15. This grant of jurisdiction is

“read as having been enacted on the understanding that the common law would provide a cause of

action for [a] modest number of international law violations.” Sosa, 542 U.S. at 724. Federal

courts may therefore “recognize private claims [for such violations] under federal common law.”
Id. at 732. The broader point made by the Supreme Court in these decisions is that federal courts

should exercise great caution before fashioning federal common law in areas touching on foreign

affairs. For the reasons explained above, such concerns of caution are squarely presented here.

The federal common law claims must be dismissed.

For the Northern District of California

United States District Court

The foregoing disposes of the federal common law claims in their entirety. The amended

complaints also assert a state law claim for public nuisance. For the reasons stated in the

February 27 order denying remand, however, plaintiffs’ nuisance claims must stand or fall under

federal common law. Accordingly, plaintiffs’ state law claims must also be dismissed.
CONCLUSION
It may seem peculiar that an earlier order refused to remand this action to state court on

the ground that plaintiffs’ claims were necessarily governed by federal law, while the current
order concludes that federal common law should not be extended to provide relief. There is,
however, no inconsistency. It remains proper for the scope of plaintiffs’ claims to be decided
under federal law, given the international reach of the alleged wrong and given that the
instrumentality of the alleged harm is the navigable waters of the United States. Although the
scope of plaintiffs’ claims is determined by federal law, there are sound reasons why regulation of
the worldwide problem of global warming should be determined by our political branches, not by
our judiciary.

In sum, this order accepts the science behind global warming. So do both sides. The
dangers raised in the complaints are very real. But those dangers are worldwide. Their causes are

worldwide. The benefits of fossil fuels are worldwide. The problem deserves a solution on a
more vast scale than can be supplied by a district judge or jury in a public nuisance case. While it

Case 3:17-cv-06012-WHA Document 236 Filed 06/25/18 Page 16 of 16
remains true that our federal courts have authority to fashion common law remedies for claims

based on global warming, courts must also respect and defer to the other co-equal branches of

government when the problem at hand clearly deserves a solution best addressed by those

branches. The Court will stay its hand in favor of solutions by the legislative and executive

branches. For the reasons stated, defendants’ motion to dismiss is GRANTED.

IT IS SO ORDERED.

Dated: June 25, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
For the Northern District of California
United States District Court

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Zennie Abraham is the CEO of Zennie62Media

About the Author

Zennie Abraham
Zennie Abraham is the CEO of Zennie62Media

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