American Elephants

Re: The California Case against Big Oil — Dismissed! by The Elephant's Child

California’s Judge Alsup has just issued his Opinion and Order shutting down this litigation against BP, Chevron et al. He said several times that it is established and “both parties agree” that Global Warming is real, serious, and anthropogenic and the seas are inevitably rising.

That is irrelevant he wrote, because the California government entities ‘Nuisance theory’ is legally way too much of a stretch and just plain nuts. And issued the order dismissing the claim. Excellent, I will not argue.

He apparently just accepted that which he regarded as the highest authority, and in the case of the rising seas which would inundate San Francisco — He noted that San Francisco hadn’t even started to build  a sea wall!

Here’s the ruling: California v. BP.

The issue is not over science. All parties agree that fossil fuels have led to global warming and ocean rise and will continue to do so, and that eventually the navigable waters of the United States will intrude upon Oakland and San Francisco. The issue is a legal one — whether these producers of fossil fuels should pay for anticipated harm that will eventually flow from a rise in sea level.

The sole claim for relief is for “public nuisance,” a claim governed by federal common law. The specific nuisance is global-warming induced sea level rise. Plaintiffs’ theory, to repeat, is that defendants’ sale of fossil fuels leads to their eventual combustion, which leads to more carbon dioxide in the atmosphere, which leads to more global warming and consequent ocean rise.

The scope of plaintiffs’ theory is breathtaking. It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew that the combustion of fossil fuels contributed to the phenomenon of global warming. While these actions are brought against the first, second, fourth, sixth and ninth largest producers of fossil fuels, anyone who supplied fossil fuels with knowledge of the problem would be liable. At one point, counsel seemed to limit liability to those who had promoted allegedly phony science to deny climate change. But at oral argument, plaintiffs’ counsel clarified that any such promotion remained merely a “plus factor.” Their theory rests on the sweeping proposition that otherwise lawful and everyday sales of fossil fuels, combined with an awareness that greenhouse gas emissions lead to increased global temperatures, constitute a public nuisance.

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