Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld.

New York City filed its suit on the heels of Judge William Alsup’s opinion in City of Oakland v. BP P.L.C., where Oakland and San Francisco sued under a public-nuisance legal theory for asserted injuries the oil companies allegedly caused. Other cities and states, like Boulder, Colorado and Rhode Island, have filed copycat complaints against the same defendants. Each suit varies factually, but the main goal is to assert liability for rising average temperatures, melting snowpack, extreme weather, and higher sea levels. The plaintiffs rely upon federal common law by using private nuisance, public nuisance, and trespass claims. Though courts have gone out of their way to state that climate change is a real problem, they have found the legal theories asserted cannot provide a valid solution to an international problem. Southern District of New York Judge John Keenan reached that same conclusion in City of New York v. BP P.L.C.

In City of New York, the plaintiff alleges that the oil and gas companies are responsible for 11% of the total carbon and methane pollution dating back to the industrial revolution. The complaint mentions various harms the oil companies imposed on the city, such as increased costs for storm-water storage-facility additions and levee construction. The plaintiff further alleges the defendants knew of the severe global impacts their practices have on the environment. It also notes harms specific to the city.

The defendants moved to dismiss the complaint and after hearing arguments, Judge Keenan granted the motion. Judge Keenan first acknowledged the plaintiff’s alleged harms and carbon emissions’ role in exacerbating climate change. The court next contemplated whether common law claims provided the proper path to a remedy. Citing recent precedents that addressed similar fact patterns, Judge Keenan concluded that common law claims are inapt, and asserted that the Clean Air Act (CAA) displaces New York City’s claims pursuant to American Electric Power v. Connecticut. That case involved the country’s five largest emitters of carbon dioxide and considered whether the CAA displaced the Petitioner’s common law claims. The Supreme Court ruled that the CAA displaced any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel-fired plants.

Even if the CAA did not apply, determining liability for trespass and nuisance would be rather difficult. Factfinders would have to consider whether the emissions were an “unreasonable interference” and “unlawful invasion” of city property. Further, measuring the benefits of oil and gas emissions versus the costs they impose on the city could result in no nuisance, given the heavy dependence on oil and gas in our society.

Understanding that the CAA applies, Judge Keenan reasoned that Congress delegated authority to the Environmental Protection Agency (EPA) to determine what constitutes a reasonable amount of emissions. The court thus held the CAA displaces the city’s federal common law claims and determined the EPA is best suited to resolve such injuries.

Finally, Judge Keenan discussed the broader legal complications of litigating a dispute of this nature. He notes that the city’s claims interfere with the Separation-of-Powers doctrine and foreign policy. Not only did New York City sue multiple U.S.-based companies, but they also sued BP and Shell, businesses headquartered overseas. Litigating matters of extraterritorial jurisdiction raises the need for judicial caution as “serious foreign policy consequences” may result from a judgment against these defendants.

Judge Keenan quoted Sosa v. Alvarez-Machain, a 2004 Supreme Court decision, which cautioned against “impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Judge Keenan recognized the Executive Branch’s intent to withdraw from agreements such as the Paris Climate Accords, and reasoned that courts should not infringe upon foreign-policy decisions firmly “within the purview of the U.S. Government.” The judicial presumption is to protect against causing international clashes when agencies, diplomats, and liaisons are better equipped to address it. Given the breadth of policy opposing litigation of such issue, the court granted the oil companies’ motion to dismiss with prejudice.

During a time of federal deregulation, plaintiffs will demand that courts provide solutions to policy concerns that cannot be achieved through the democratic process. However, Judge Keenan confirmed that federal common law has no place in resolving a problem of such magnitude. The Second Circuit should recognize the role other branches of government play in addressing an international matter and affirm the Southern District of New York’s decision.