On July 19, the U.S. District Court for the Southern District of New York decided the case of City of New York v. BP P.L.C., et al., granting the defendants’ motion to dismiss and dismissing the City of New York’s amended complaint. The amended complaint alleged three causes of action: (1) public nuisance; (2) private nuisance; and (3) trespass, and sought compensatory damages and an equitable order ascertaining damages and granting an injunction to abates these injuries, which would not, however, take effect unless the defendants failed to pay court-determined damages.
The complaint alleged that defendants, all large multinational oil and gas companies, are “the largest cumulative producers of fossil fuels worldwide from the nineteenth century to the present.” In further alleged that they are “collectively responsible … for over eleven percent of all carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the Industrial Revolution.” Consequently, the City of New York contended that these defendants have contributed to the temperature increases and global-warming-induced sea level rises affecting New York City all the while being “engaged in an overt public relations campaign intended to cast doubt on climate science.” In addition, the City of New York contended that it has been obliged to take “proactive steps to protect itself and its residents from the dangers and impact of global warming.”
In response to the defendant’s motion to dismiss, the District Court held:
- The City of New York’s claims are governed by federal common law because the claims are “ultimately based” on the transboundary emission of greenhouse gases to which federal common law, not state law, should apply.
- To the extent that the City of New York brings nuisance and trespass claims against the defendants for greenhouse gas emissions, the federal Clean Air Act (CAA) displaces federal common law claims in accordance with the Supreme Court’s ruling in American Electric Power Co., Inc., et al., v. Connecticut and the Ninth Circuit’s decision in Native Village of Kivalina v. ExxonMobil Corp., et al., because the CAA speaks directly to the question of domestic greenhouse gas emissions.
- To the extent that the City of New York seeks to hold some of the defendants liable for damages resulting from worldwide greenhouse gas emissions, its claims are barred by the presumption against extraterritoriality.
With regard to the last point, the District Court noted that
“To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government. Accordingly, the Court will exercise appropriate caution and decline to recognize such a cause of action.”
Late last month, the U.S. District for the Northern District of California dismissed a similar law suit filed by the City of Oakland, et al., v. BP P.L.C.