Fossil fuel giants fight for dismissal of climate change liability suit

Honolulu and energy giants like Chevron and Exxon Mobil faced off over where a suit accusing the companies of deliberately exacerbating greenhouse gas emissions should be taken to trial.

by Candace Cheung, Court House News, August 17, 2023

HONOLULU (CN) — Major fossil fuel companies argued Thursday in front of the Hawaii Supreme Court to pull a climate change lawsuit out of state court, insisting that the global effect of greenhouse gases isn't subject to local laws.

The energy giants argued that the state courts weren’t the right venue for the case, where the city and county of Honolulu seeks to hold energy giants like Chevron, Exxon Mobil, Sunoco and other gas and oil companies accountable for their contributions to the ever-increasing effects of climate change on Hawaii.

Honolulu first accused the companies, in a lawsuit filed in Oahu Circuit Court in 2020, of allowing the production of greenhouse gas emissions for decades with full knowledge of the harmful effects and of deliberately downplaying and misrepresenting the possible damage. The city’s suit claimed failure to warn, private and public nuisance and trespass.

In an appeal to the Hawaii Supreme Court Thursday, the fossil fuel companies argued for the second time that that common federal law preempts and displaces state laws. The defendants had previously appealed to the Ninth Circuit to remove the case from state jurisdiction in 2022.

The Ninth Circuit sent the case back to state courts in July 2022, ruling that federal courts did not have jurisdiction, as the city’s complaint focused on the fossil fuel companies’ misrepresentations to Hawaii, rather than anything to do with the locality of the production of greenhouse gases.

Theodore J. Boutrous, a Los Angeles-based attorney for Chevron, argued on behalf of the defendants that the city’s claims couldn’t be tried in state court, given the inherent worldwide nature of climate change. He argued that the plaintiffs were “projecting Hawaii law” into every jurisdiction to eventually become the mechanism around the world for marketing fossil fuels.

“They don’t allege a specific misrepresentation in Hawaii at all. But what they do, is they go on for probably 60 pages, talking about alleged misrepresentations and concealments around the United States that they claim increased global gas emissions and that caused climate change in the earth's atmosphere. So, it is global,” Boutrous said. “Every court has confronted the merits of these questions probably going back 20 years and have said there are no federal and state law claims that can be applied here because it’s a global issue.”

Supreme Court Justice Sabrina McKenna questioned what court these claims could then possibly be brought in, if neither federal nor state laws were applicable to the defendants on these claims. Boutrous said that federal jurisdiction was at least appropriate given the interstate and international allegations of the suit, especially given the plaintiffs; reliance on references to national and global emissions in their complaint.

The defendants emphasized a New York case where the U.S. Supreme Court had ruled that the Clean Air Act displaces federal common law and granted jurisdiction over similar nuisance claims to the Environmental Protection Agency, which can deal with the greater global policy issues of climate change.

Victor Sher, representing the city and the Honolulu Board of Water Supply, pushed back, citing cases in Rhode Island; Baltimore, Maryland; and Boulder, Colorado, where the U.S. Court of Appeals ruled to keep similar claims in their respective state courts.

“The Clean Air Act reduces pollution; it addresses pollution behavior. It does not provide a safe haven for international corporations to dissemble and lie about their products,” he said.

Sher later added, “The desire of a private defendant corporation that does business everywhere, that for its convenience and interest in uniformity, does not rise to the level of a federal interest that would constitute preemption.”

Supreme Court Chief Justice Mark Recktenwald asked if Honolulu’s claims would indeed create an “outsized and unintended influence” on national and international fossil fuel marketing.

“Is it in envisioned that there would be liability for representations made throughout the United States or misrepresentations made here in Hawaii?” Recktenwald asked.

Sher said that both scenarios were relevant to the case and that based on similar suits, “The reason is that, the tortious conduct wherever it occurred has caused the injury in this state. Nuisance liability can attach to an out of state actor for instate harms.”

The plaintiffs also emphasized that Honolulu — and the state of Hawaii as whole, as a delicate isolated island ecosystem — has been heavily and particularly impacted by the effects of climate change.

“The costs to plaintiffs of defendant’s tortious conduct is threat to freshwater aquifers, injuries to critical infrastructure — we’ve already lost 25% of Oahu’s beaches — and damage to county roads from coastal erosion. So, compensation in this case will not solve climate change but it will help this community survive it by providing funds to adapt, prepare, strengthen resilience and move forward,” Sher said.

A similar suit brought by Maui County remains pending in Maui Circuit Court. Other states and cities, including Rhode Island and California, have brought similar claims as well.