Cal Court to Hear Climate Tutorial

Recent events in the legal claims against oil companies for climate damages feature both a setback for anti fossil fuel activists, and also scheduling for the court to hear both sides regarding the linkage between fossil fuels and climate effects like glaciers melting. First the ruling against the cities’ attempt to take the case out of federal court into state jurisdiction. (with my bolds)

People of State of California v. BP p.l.c. (Oakland) Notice 02/27/2018

The federal district court for the Northern District of California denied Oakland’s and San Francisco’s motions to remand their climate change public nuisance lawsuits against five major fossil fuel producers to state court.

The court held that federal common law necessarily governed the nuisance claims because “[a] patchwork of fifty different answers to the same fundamental global issue would be unworkable” and “the extent of any judicial relief should be uniform across our nation.” The court stated: “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.” The court dispensed with the cities’ three primary arguments for remanding the cases.

First, the court said the cities’ novel theories of liability based on the defendants’ sales of their product did not differentiate their claims from earlier transboundary pollution suits in which the Supreme Court (American Electric Power Co. v. Connecticut) and Ninth Circuit (Native Village of Kivalina v. ExxonMobil Corp.) applied federal common law.

Second, the court said the Clean Air Act did not displace the plaintiffs’ federal common law claims, allowing state law to govern; the court said that while the Clean Air Act spoke directly to the “domestic emissions” issues presented in American Electric Power and Kivalina, “[h]ere, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.”

Third, the court said the well-pleaded complaint rule did not bar removal. The court also indicated in dicta that “the very instrumentality of plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.” The court said defendants had not waived this issue.

The court certified the decision for interlocutory appeal, finding that the issue of whether the nuisance claims were removable because such claims are governed by federal common law was a controlling question as to which there is substantial ground for difference of opinion and that resolution by the court of appeals would materially advance the litigation. The court’s order also noted that six similar actions brought by other California municipalities were pending before another judge in the district and those actions asserted additional non-nuisance claims.

Federal Court Requested “Tutorial” on Climate Change.

Then we have an intriguing ruling by the court mandating a climate tutorial to educate the court on these matters. On the same day that it denied Oakland’s and San Francisco’s motions to remand their climate change lawsuits against fossil fuel producers, the court issued a “Notice re Tutorial” that invited counsel for the parties to conduct a two-part tutorial on global warming and climate change on March 21. The court gave each side an hour to “trace the history of scientific study of climate change” and an hour to “set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.” The court indicated that counsel could either use experts to conduct the tutorial or conduct the tutorial themselves.

NOTICE RE TUTORIAL
The Court invites counsel to conduct a two-part tutorial on the subject of global
warming and climate change:

(1) The first part will trace the history of scientific study of
climate change, beginning with scientific inquiry into the
formation and melting of the ice ages, periods of historical cooling
and warming, smog, ozone, nuclear winter, volcanoes, and global
warming. Each side will have sixty minutes. A horizontal
timeline of major advances (and setbacks) would be welcomed.

(2) The second part will set forth the best science now
available on global warming, glacier melt, sea rise, and coastal
flooding. Each side will again have another sixty minutes.

The tutorial will be on MARCH 21, 2018, AT 8:00 A.M. AND RUN UNTIL ABOUT 1:00 P.M.
Experts may be used to present but counsel will also be welcome to conduct the tutorial.
IT IS SO ORDERED.
Dated: February 27, 2018. WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

Summary

Many of us have wanted to see a red and blue team confrontation, but did not see it coming in this way. As you see from the text of the ruling, it is two hours for each side, first on climate history and then on current global warming science. It has been a long time since climatists and skeptics faced off in a neutral venue. Hopefully people in the bay area will witness the proceedings.

Footnote:

Brian Potts writing in Forbes totally misinterprets the ruling, stating as a result the very thing the court prevented.

A California Court Might Have Just Opened The Floodgates For Climate Litigation

Background Resources:

On Coastal Climate Risk

Climate Hail Mary by Inept Cities

Is Global Warming A Public Nuisance?

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22 comments

  1. hunter · March 3

    The corruption of the public square means this tutorial could go dangerously awry.
    Instead of a robust and penetrating deconstruction of the overwhelmingly disproven AGW hype, we are all too likely to hear a muted cya, niggling at the boundaries, half hearted flawed defense. And a full throsted, fact free, hyped deceptive bit of climate orthodoxy from the plaintiffs.

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  2. Ron Clutz · March 4

    It’s true that we do not know what content will be presented by oil companies’ legal teams. If they try to appease, as though this were a PR exercise, it will be a mistake.

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  5. Jim Hoerricks · March 8

    If it’s a Daubert hearing, the plaintiffs will need to show valid, reliable, repeatable, and reproducible answers to some basic questions. Q1: what is the energy requirement to heat one square kilometer of sea water one degree Centigrade? Q2: what is the energy requirement to melt one square kilometer of glacier ice? Q3: how much atmospheric carbon is required to produce the energy requirements for Q1 and Q2? Q4: can the answer to Q3 be tied exclusively to the defendants, controlling for natural occurring sources of atmospheric carbon.

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    • Ron Clutz · March 8

      Thanks Jim, it seems you know something about this kind of proceeding. Any idea how multiple company legal teams organize their presentation, and how they deal with past PR statements agreeing that global warming is a problem?

      Like

      • Jim Hoerricks · March 8

        Yes. I’m familiar with these types of hearings … if it is in fact a Daubert Hearing. A Daubert Hearing is an in limine hearing under Federal Rule of Evidence 104(a). In Daubert, the US Supreme Court instructed trial courts to determine expert opinion admissibility as a preliminary inquiry under Rule 104(a), and to require proof by a preponderance of the evidence.

        The methodology for the various tests has to be valid – meaning they’re designed to test what they’re testing. The test(s) must be reliable, meaning that it’s not a one-off novelty and have general acceptance in the field. Any challenges to validity must be addressed in a factual and systematic manor. The methodology must be repeatable (test-retest validity, etc). It must also be reproducible – others must be able to use your data and reproduce your experiment and come to a similar result. If one side has variables not present in the other side’s tests, this must also be explained – proven.

        Given the time limitations placed on the event by the Judge, and the fact that it was ordered by the Judge and not requested by either side’s attorneys, it’s likely not a full Rule 104(a) hearing. But, given what he’s asking for, it sure seems like he wants a Rule 104(a) highlight reel. I’m hoping the science is the feature of this exercise, not politics.

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  6. Bill Carswell · March 8

    I want to watch! Will this be televised?

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    • Ron Clutz · March 8

      Bill, me too! But I have no info on that. if anyone does, please share.

      Like

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