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Indiana leads amici fight against California climate change suit

April 23, 2018

Indiana is leading a 15-state fight against a California lawsuit the states say represents an attempt by two California cities to impose their climate change policies on a national level.

Indiana Solicitor General Thomas M. Fisher authored the 15-state amicus brief in The People of the State of California v. BP P.L.C., et al, C-17-06011 and -06012, on April 19. The amici states urged the Northern California District Court to dismiss a lawsuit against five of the world’s largest fossil fuel corporations — BP, Chevron Corp., ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell PLC.

Plaintiffs San Francisco and Oakland, California, allege in their complaint against the five organizations that the defendants have broken common law by promoting the use of fossil fuels and “sufficiently contribut(ing) to global warming as to constitute a ‘public nuisance’ that the federal judiciary should enjoin.” The complaint seeks “an order of abatement requiring Defendants to fund a climate change adaptation program for San Francisco consisting of the building of sea walls, raising the elevation of low-lying property and buildings and building such other infrastructure as is necessary for San Francisco to adapt to climate change.”

The Indiana-led coalition, however, urged the California court to find that the relief the plaintiffs are seeking is not available via the courts.

Specifically, Fisher said the complaint raises political questions related to environmental policy, and such questions cannot be answered in court. As proof, he pointed to the widely varying environmental policies adopted by U.S. presidents in recent years.

Fisher also said the requested relief would undermine the federalist system of regulating air quality standards that was implemented through the Clean Air Act. He pointed specifically to the 2011 decision in American Electric Power Vo. v. Connecticut, 564 U.S. 410, 424, which held that the “Clean Air Act and EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”

“Plaintiffs seek to evade AEP’s mandate by framing the ‘nuisance’ as ‘producing’ and ‘promoting’ the use of fossil fuels rather than ‘emitting carbon dioxide,’ but this tactic serves only to show that their claim is too attenuated,” Fisher wrote.

The amici states also relied on AEP to support their position that federal common law cannot be the basis for the plaintiffs’ claims.

Finally, Fisher said the California cities’ requests for relief fail because they violate the Constitution’s Commerce Clause.

“At the most basic level, such remedies represent an effort by one state to occupy the field of environmental and energy production regulation across the nation, and to do so by superseding sound, reasonable, and longstanding standards adopted by other states in a system of cooperative federalism and by the federal government,” he wrote. “Indeed, even if the Plaintiffs’ desired remedies do not directly conflict with other states’ existing laws and regulatory framework, it nonetheless would ‘arbitrarily … exalt the public policy of one state over that of another’s in violation of the Commerce Clause.”

Indiana’s amicus brief was joined by Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming.

“While today California cities sue energy manufacturers to make up for massive deficits, tomorrow we could see suits against other job creators,” Indiana Attorney General Curtis Hill said in a Monday statement. “Our amicus brief should send a loud message that the rest of the nation will not stand idle while California tries to become its own regulatory empire.”

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