ON JAN. 25, 2019, Swedish activist Greta Thunberg, then 16 years old, famously called on the adults of the world to panic over climate change, saying “I want you to act as you would in a crisis. I want you to act as if the house is on fire, because it is.”
If the pace of litigation over the responsibility of big oil companies for their role in causing climate change is any measure, the American judicial system has not gotten Thunberg’s message.
On Monday, U.S. District Judge Vince Chhabria entered orders returning to state court six lawsuits seeking to hold big oil companies accountable for their alleged role in causing climate change. The suits spent more than five years in the federal system while the parties debated which court should hear the cases.
The odyssey began in September 2017 when, over a four-month period, three California counties — Marin, Santa Cruz and San Mateo — and three California cities, including Richmond and Santa Cruz, filed audacious lawsuits against the world’s biggest oil companies for their role in causing sea level rise.
The suits were not identical but they shared the common complaint that the big oil companies had known for more than 50 years that the fossil fuels they extracted, refined, and sold were causing profound environmental damage and they had done little to abate the harms caused.
The defendants included more than 30 energy companies, among them the big names of Chevron Corp., ExxonMobil Corp., BP PLC, Shell Oil Products Co. LLC, ConocoPhillips, and Royal Dutch Shell PLC.
The defendants quickly lawyered up, engaging a roster of the largest and most well-known law firms in the United States.
Their first move was to get the cases out of the state courts where they had been originally lodged.
Making it a federal case
Beginning in October 2017, the energy companies “removed” the cases from state court to U.S. District Court for the Northern District of California, where they were assigned to Chhabria.
Removal is a legal procedure made available to a defendant who is sued in state court when the basis of the claim is one that would support the jurisdiction of the federal courts, most importantly when the underlying claim is based on federal law.
The plaintiffs contested the removal, arguing that the claims they asserted — including public nuisance, negligence and trespass — were quintessential state law claims, arising from the power of cities and counties to protect their residents from harm caused by others. They pointed out that their complaints did not assert any federal law claims or seek relief under any federal statutes.
While the initial filing dates differed, all the cases followed the same path once they reached federal court.
San Mateo County, for example, filed its suit in July 2017. The defendants removed it to federal court on Aug 24.
After extensive briefing and argument, on March 16, 2018, Chhabria found that there was no proper basis for federal courts to hear the case. As the counties and cities had argued, their legal theories were based on state law and were appropriate for resolution in state courts.
He ordered the cases returned to the courts where they were originally filed.
On March 27, 2018, the energy companies appealed and asked the U.S. Court of Appeals for the 9th Circuit to reverse Chhabria’s decision. They argued that federal law governed the claims and therefore should be heard in federal court.
It took more than two years for the 9th Circuit to decide the case, but on May 26, 2020, a three-judge panel released a complicated decision that had the result of leaving Judge Chhabria’s order in place.
The decision would have allowed the cases to go back to the courts where they were originally filed, but in a petition filed Jan. 4, 2021, the energy companies asked the U.S. Supreme Court to review the decision.
Supreme denial
On May 24, 2021, the Supreme Court agreed to take the case but immediately sent it back to the 9th Circuit to give it further consideration in light of a recent Supreme Court decision involving a suit against BP.
Just short of a year later, on April 19, 2022, a three-judge panel of the 9th Circuit reconsidered its decision and found that Chhabria’s order was correct.
The energy companies then asked for the case to be reheard en banc, that is by a broader group of judges on the 9th Circuit, not just the three who had been on the panel that affirmed Chhabria’s order.
That petition was denied on June 27, 2022, but all was not done.
On Nov. 22, the oil companies again asked the U.S. Supreme Court to review the case.
On April 24 of this year, the high court decided it would not do so.
That cleared the way Monday for Chhabria to enter the shortest order of the drama: “The case is hereby remanded to the Superior Court of the State of California, County of San Mateo. The Clerk is directed to close the [federal] case.”
“Communities across California experience the accelerating climate crisis every day. … [The defendants] deceived and failed to warn consumers about it even as they carried on pocketing trillions of dollars in profits. … It is time to prepare for trial.”
Joint statement issued by Marin, San Mateo and Santa Cruz counties and the cities of Santa Cruz and Richmond
With the remand, the cases are back where they started. In San Mateo County’s case, the journey through federal court took five years and nine months.
Now that the cases are back where they started, they will pick up where they left off.
However, because almost nothing happened in those cases before the removal, it will be much the same as if the cases were being freshly filed today.
Braden Reddall, a spokesman for Chevron, speaking about similar suits filed by the cities of San Francisco and Oakland (cases that had their own legal odyssey) , said the plaintiffs seek to hold Chevron responsible for “worldwide conduct going back to the Industrial Revolution,” and expressed optimism that the claims will be dismissed on the merits.
A joint statement issued by Marin, San Mateo and Santa Cruz counties and the cities of Santa Cruz and Richmond, said, “Communities across California experience the accelerating climate crisis every day, through extreme precipitation and floods, wildfire, impacts on public health and vital infrastructure, and more.”
They went on to say that the defendants “knew these catastrophic impacts were coming, and predicted it with precision, but they deceived and failed to warn consumers about it even as they carried on pocketing trillions of dollars in profits.”
The statement closes by stating that the defendants “have exhausted their procedural delay tactics for this phase of the cases. It is time to prepare for trial.”
Given the history of the cases so far, the final statement may prove optimistic.