Reducing Environmental Risk

NYC Slams Energy Companies’ Bid to Dodge Climate Suit

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“Fake news!” You’ve probably heard this new term lately.

We’re living in a time where citizens fear deception. We’re also living in a time where the world’s climate is changing faster than at any point in the history of modern civilization. To that end: is climate change real? Are humans the primary cause? Spoiler alert: The answer to both questions is yes.

Thousands of studies have proven that the world is heating up resulting in climate change and that human activity since the Industrial Era is the primary factor for that change. We have seen the devastating damages of climate change first hand, and scientists have released volumes of data concerning the climate impacts of energy consumption on our world. When New York City recently discovered that big energy companies knew about climate change decades ago and deliberately deceived the public, the City acted.

First, a bit on climate change litigation: We have entered an era of climate change action, which has included a string of lawsuits against energy industry giants. One of the first cases of this kind was Native Village of Kivalina v. ExxonMobil Corp, 4:08-cv-01138-SBA (N.D. Cal. 2008), where residents of an Alaskan island facing extreme erosion and weather events claimed damages from energy companies, claiming the weather patterns were due to climate change which had been caused by the companies’ actions. Read the Complaint here. This case opened the door for private law suits based on various legal theories including tort, fraud, conspiracy and corporate law, all under the umbrella of “climate change litigation.” The cities of Oakland, San Francisco, and New York, and the state of Rhode Island have also each brought cases against fossil fuel companies. Even young budding lawyers practice climate change litigation in nationwide competitions.

How is the NYC Case Going?

In January 2018, NYC sued five of the largest fossil fuel companies for climate change-related damages. The complaint alleges that ExxonMobil deceived its investors by hiding the true extent of its financial exposure to laws aimed at curbing greenhouse gas emissions. The federal district court for the Southern District of New York dismissed NYC’s lawsuit and found that: (1) federal common law governed the City’s claims because the claims were “ultimately based on the ‘transboundary’ emission of greenhouse gas emissions,” and require a uniform standard of decision; and (2) Congress already spoke to the issue by enacting the Clean Air Act, therefore displacing NYC’s federal common law claims. Despite these setbacks, NYC appealed to the Second Circuit in November 2018, arguing that federal law does not preempt climate change-related infrastructure costs. NYC insists that these fossil fuel companies played a role in the City’s harm, and “New York law recognizes that multiple parties’ conduct can be a cause-in-fact of a nuisance,” according to the City. The parties’ arguments to the Second Circuit can be found on this website.

This landmark case will set the tone for whether municipalities can successfully obtain monetary damages as a result of climate change-related harm from energy companies in order to maintain its infrastructure. There is also a good possibility this case ends up on the U.S. Supreme Court’s docket, regardless of how the Second Circuit decides the issues.

For more information on climate change litigation and NYC’s lawsuit, call the attorneys of Periconi, LLC at 212-213-5500.



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