Rule of Law Clinic Files Amicus Brief on Climate Change

On March 20, 2019, the Rule of Law Clinic at Yale Law School 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 are arguing that a group of oil companies deliberately engaged in a decades-long campaign of misinformation to sow doubt about the connection between fossil fuels and global climate change, which have caused sea-level rise and other climate-related harms to the cities. They 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 who are experts in U.S. foreign policy and climate negotiations. The amici include, among others, 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; two former EPA Administrators; and multiple former Deputy Secretaries of State.

Drawing on their decades of experience in international diplomacy, the amici explained that the cities’ lawsuits are unlikely to interfere with U.S. climate negotiations. As the amici noted, international climate agreements have never sought to shield oil companies from liability for deceiving consumers and the public about the dangers of fossil fuels. While the amici took no position on whether the cities’ allegations could eventually be proved in court, they explained that the district court was wrong to assume that state lawsuits about corporate deception would interfere with U.S. foreign policy. Far from frustrating U.S. foreign policy, the amici noted that the 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.

The amici further explained that it would be premature to dismiss the cities’ lawsuit at this time. The amici observed that the district court’s decision was founded on vague, conjectural claims about future diplomatic backlash, which, if it ever did arise, could be managed at a later date. As the amici noted in the brief, if anything has caused diplomatic backlash in recent years, it has been the current administration’s attempts to retreat from the international consensus on the reality and severity of climate change.

In the same case, the Law School’s San Francisco Affirmative Litigation Project (SFALP) has helped the San Francisco City Attorney file the case.