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Climate Team Legal Planet Blogs
Students Rosa Hayes ’20 and Samantha Peltz ’20 discuss the path forward for establishing standing in climate litigation after the 9th Circuit’s Juliana decision on a popular environmental law blog, Legal Planet.
Oakland and San Francisco Climate Tort Suit
On March 20, 2019, the Rule of Law Clinic filed an amicus brief on behalf of former U.S. diplomats and government officials in City of Oakland v. BP p.l.c., a case currently pending before the Ninth Circuit. The cities of Oakland and San Francisco sued a group of Carbon Majors for the climate change harms caused by their deceptive marketing and promotion of fossil fuels. The cities are currently appealing the district court’s dismissal of their lawsuit, which the court based in part on the grounds that allowing the cities’ lawsuit to proceed would interfere with U.S. climate negotiations and foreign policy.
The Clinic represented a group of amici—including former Secretary of State John F. Kerry; former U.S. Special Envoys for Climate Change Todd D. Stern and Jonathan Pershing; Yale Law School visiting lecturer Susan Biniaz, the State Department’s former lead lawyer for climate change—who drew on decades of experience in international diplomacy to explain that the cities’ lawsuit is unlikely to interfere with U.S. climate negotiations.
As the amici noted, international climate agreements have concerned payments exclusively between nations, with funds flowing almost entirely toward developing countries. Moreover, the international climate regime is intentionally agnostic on the issue of liability. Therefore, the cities’ lawsuit seeking civil liability for deceptive corporate conduct does not interfere with the United States’ ongoing climate negotiations. Further, amici advised the court that American foreign policy is not and has never been amnesty or immunity for corporate deception. Indeed, agreements the United States has with other nations—including agreements with other OECD countries and the recently renegotiated successor to NAFTA—emphasize the importance of enforcing limits on deceptive corporate behavior.
New York Climate Tort Suit
On behalf of scholars of conflicts of law and foreign relations law, the Rule of Law Clinic filed an amicus brief in the Second Circuit in City of New York v. BP P.L.C. et al., a climate change case in which New York City sued Carbon Majors for the harms caused by their production, marketing, and sale of fossil fuels. Although the City’s causes of action are classic state law claims—trespass and nuisance—the district court dismissed the lawsuit in part due to concerns that the case would violate a presumption that domestic laws do not apply extraterritorially and interfere with foreign relations. The Clinic’s amicus brief argued that these concerns were misplaced because the presumption against extraterritoriality is a canon of statutory interpretation concerned with legislative intent and therefore does not apply to common law claims. Instead, the court should have applied traditional conflict of law principles to find that New York tort law applies. Further, the court’s foreign policy concerns were predicated on an inapposite line of cases limited to the Alien Tort Act. Under proper foreign affairs preemption analysis, New York tort law avoids preclusion because it is addressing a traditional state concern: damage to local property.