According to New York City’s complaint, combustion of the five oil and gas companies’ products account for 11 percent of the world’s cumulative greenhouse gas emissions from the mid-19th century to the present. Therefore, the complaint argues, the companies owe the City big bucks (potentially billions of dollars) for their contribution to past and future projected climate change damages due to sea-level rise, heat waves, heavy downpours, and the like.
Judge Keenan rejects the complaint for three main reasons. First, the City sued the oil companies under state common law, which is inadequate to decide liabilities associated either with products sold on a “global scale” or with “transboundary pollution” from “third-party users” in “all 50 states and around the world” for more than a century. Awarding torts in such a case would require a “uniform standard of decision”—potentially achievable under federal common law but “not the varying common law of the individual states.”
Second, the Clean Air Act “displaces” federal common law nuisance claims regarding greenhouse gases, so plaintiffs cannot sue under federal common law either. The Supreme Court ruled in the American Electric Power v. Connecticut and ExxonMobil v. Kivalina that Congress delegated to Environmental Protection Agency the determination as to what constitutes reasonable emission levels of greenhouse gases; hence asking individual judges to make such judgments “cannot be reconciled with the decision-making scheme Congress enacted.”
In this context, Judge Keenan also observes that applying common law concepts of “nuisance” and “trespass” to greenhouse gases suggests that defendants’ products or the associated emissions create an “unlawful invasion” of City property. However, that makes little sense considering that “the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades.”
Third, the City’s claims interfere with the separation of powers and foreign policy. Shell and BP are foreign companies, and all five defendants produce and sell products in the global marketplace. In effect, the City is attempting to determine the foreign policy of the United States and influence the energy policies of other nations.
Judges are not qualified to weigh “the global benefits of fossil fuel use with the gravity of the impending harms.” Requiring courts to assign climate-related liabilities to the five “would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government.”