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People v. BP P.L.C.

United States District Court, N.D. California

February 27, 2018

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff,
v.
BP P.L.C., et al., Defendants.

          ORDER DENYING MOTIONS TO REMAND

          WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In these “global warming” actions asserting claims for public nuisance under state law, plaintiff municipalities move to remand. For the following reasons, the motions are Denied.

         STATEMENT

         Oakland and San Francisco brought these related actions in California Superior Court against defendants BP p.l.c, Chevron Corporation, ConocoPhillips Company, Exxon Mobil Corporation, and Royal Dutch Shell plc. Defendants are the first (Chevron), second (Exxon), fourth (BP), sixth (Shell) and ninth (ConocoPhillips) largest cumulative producers of fossil fuels worldwide (Compls. ¶ 10).

         Burning fossil fuels adds carbon dioxide to that already naturally present in our atmosphere. Plaintiffs allege that the combustion (by others) of fossil fuels produced by defendants has increased atmospheric levels of carbon dioxide and, as a result, raised global temperatures and melted glaciers to cause a rise in sea levels, and thus caused flooding in Oakland and San Francisco (Oakl. Compl. ¶¶ 38, 48, 50; SF Compl. ¶¶ 38, 49, 51).

         The complaints do not seek to impose liability for direct emissions of carbon dioxide, which emissions flow from combustion in worldwide machinery that use such fuels, like automobiles, jets, ships, train engines, powerplants, heating systems, factories, and so on. Rather, plaintiffs' state law nuisance claims are premised on the theory that - despite long-knowing that their products posed severe risks to the global climate - defendants produced fossil fuels while simultaneously engaging in large scale advertising and public relations campaigns to discredit scientific research on global warming, to downplay the risks of global warming, and to portray fossil fuels as environmentally responsible and essential to human well-being (Oakl. Compl. ¶¶ 11, 62-83; SF Compl. ¶¶ 11, 63-84).

         The complaints further allege that accelerated sea level rise has and will continue to inundate public and private property in Oakland and San Francisco. Although plaintiffs (and the federal government through the Army Corps of Engineers) have already taken action to abate the harm of sea level rise, the magnitude of such actions will continue to increase. The complaints stress that a severe storm surge, coupled with higher sea levels, could result in loss of life and extensive damage to public and private property (Oakl. Compl. ¶¶ 84-92; SF Compl. ¶¶ 85-93).

         Based on these allegations, each complaint asserts a single cause of action under California public nuisance law. As relief, such complaints seek an abatement fund to pay for seawalls and other infrastructure needed to address rising sea levels (Oakl. Compl. ¶¶ 93-98; SF Compl. ¶¶ 94-99, Relief Requested ¶ 2).

         Defendants removed these actions. Plaintiffs now move to remand to state court. This order follows full briefing and oral argument.[1]

         ANALYSIS

         Plaintiffs' nuisance claims - which address the national and international geophysical phenomenon of global warming - are necessarily governed by federal common law. District courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States, ” including claims brought under federal common law. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850 (1985) (citing 28 U.S.C. § 1331). Federal jurisdiction over these actions is therefore proper.

         Federal courts, unlike state courts, do not possess a general power to develop and apply their own rules of decision. City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981) (“Milwaukee II”). Federal common law is appropriately fashioned, however, where a federal rule of decision is “necessary to protect uniquely federal interests.” Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981). While not all federal interests fall into this category, uniquely federal interests exist in “interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations.” Id. at 641. In such disputes, the “nature of the controversy makes it inappropriate for state law to control.” Ibid.

         In Illinois v. City of Milwaukee, 406 U.S. 91, 107 n.9 (1972) (“Milwaukee I”), for example, the Supreme Court applied federal common law to ...


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