City of Hoboken v. Exxon Mobil Corp.

Decision Date08 September 2021
Docket NumberCivil Action No. 20-cv-14243
Citation558 F.Supp.3d 191
Parties CITY OF HOBOKEN, Plaintiff, v. EXXON MOBIL CORP., et al., Defendants.
CourtU.S. District Court — District of New Jersey

Gerald Krovatin, Helen A. Nau, Krovatin Nau LLC, Newark, NJ, for Plaintiff.

Herbert Jay Stern, Joel M. Silverstein, Stern & Kilcullen, LLC, Florham Park, NJ, for Defendants Chevron Corp., Chevron U.S.A. Inc.

Kevin Harry Marino, John D. Tortorella, Marino Tortorella & Boyle, PC, Chatham, NJ, Theodore V. Wells, Jr., Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, for Defendants Exxon Mobil Corp., Exxonmobil Oil Corporation.

Loly G. Tor, K&L Gates, LLP, Newark, NJ, for Defendants Royal Dutch SHELL PLC, Shell Oil Company.

Paul Joseph Fishman, Arnold & Porter Kaye Scholer LLP, Newark, NJ, for Defendants BP P.L.C., BP America, Inc.

Dennis M. Toft, Jeffrey Scott Chiesa, Michael Kevin Plumb, Chiesa Shahinian & Giantomasi PC, West Orange, NJ, for Defendants Conocophillips, Conocophillips Company.

Anthony Pius Callaghan, Thomas R. Valen, Gibbons, PC, Sylvia-Rebecca Gutierrez, Gibbons P.C., Newark, NJ, for Defendants Phillips 66, Phillips 66 Company.

Anthony J. Zarillo, Jr., Jeffrey Matthew Beyer, Riker Danzig Scherer Hyland & Perretti LLP, Morristown, NJ, for Defendant American Petroleum Institute.

OPINION

John Michael Vazquez, U.S.D.J.

This case is one of many similar cases recently filed throughout the United States seeking to hold oil and gas companies accountable for their role in climate change. In this matter, Plaintiff the City of Hoboken ("Plaintiff" or "Hoboken") alleges that Defendants, who are oil and gas companies and related entities, engaged in a decades-long campaign to downplay the effect of fossil fuel usage on climate change. Plaintiff further alleges that it and its residents have been damaged by this conduct through the dire effects of global warming. Presently before the Court is Plaintiff's motion to remand this case to state court, D.E. 94, and Defendantsmotion to strike certain portions of Plaintiff's reply brief, D.E. 106. The Court reviewed all the submissions in support and opposition to the motions1 and considered the motions without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons discussed below, Plaintiff's motion to remand is GRANTED and Defendantsmotion to strike is DENIED .

I. FACTUAL BACKGROUND2 AND PROCEDURAL HISTORY

Through this matter, Hoboken seeks compensation to offset the costs it has and will continue to incur to protect itself from the effects of global warming. Plaintiff contends that Defendants’ production, marketing, and sale of fossil fuels has been a "substantial factor" in skyrocketing carbon dioxide (CO2) emissions. Compl. ¶ 42. The rising concentration of CO2 emissions is a driving force in climate change. Id. ¶ 41.

And global warming, in turn, is causing climate disruption and damage throughout the world, including in Hoboken. Hoboken is a densely populated urban area located across the Hudson River from New York City. Id. ¶¶ 8, 10, 46. As a result, it is particularly vulnerable to damage from rising sea levels and extreme rainfall events caused by global warming. Id. ¶¶ 45, 225-54. Hoboken has already incurred substantial damage from weather events associated with global warming, including Hurricane Irene and Superstorm Sandy. See id. ¶ 11. Hoboken submits that it will continue to experience extreme weather events, damage from rising sea levels, and other problems associated with global warming. See id. ¶¶ 225-27.

Plaintiff alleges that Defendants have known about and studied the potential harms from fossil fuel usage since the 1950s. Id. ¶ 75. Despite this knowledge, Defendants decided to prioritize their profits and actively suppressed evidence of the effects of global warming. Id. ¶¶ 75, 107. Beginning in the late 1980s, Exxon's strategy to combat global warming "shifted from trying to understand the impact of fossil fuels on climate change to trying to dispute and conceal their impact. It has continued to employ this strategy through the present day." Id. ¶ 116. To do so, Exxon and other Defendants created front groups with neutral names to promote climate science denial and misinformation campaigns. Id. ¶¶ 118-61. To that end, from 1998 to 2007, "ExxonMobil gave over $20 million to think tanks and organizations that published research and ran campaigns denying climate science." Id. ¶ 159. But while Defendants were engaged in their misinformation campaign, they were actively making business plans that accounted for rising sea levels and warming temperatures due to global warming. Id. ¶¶ 162-71.

As the scientific certainty about global warming solidified over the last decade, Defendants switched their tactics from outright deception to a plan to "greenwash" consumers. Greenwashing refers to Defendants’ strategy to make consumers think that Defendants are committed to combatting climate change when, in fact, Defendants have not made any changes to their fundamental, core business of extracting and producing fossil fuels. Id. ¶¶ 172-92. "Defendants’ greenwashing campaigns," which still continue, "are cover for their accelerating extraction, production, marketing and sale of fossil fuels—the actual cause of climate change." Id. ¶ 194. In addition to the pivot to "greenwashing," Defendants also continue to fund organizations that deny global warming. Id. ¶ 209.

Plaintiff contends that Defendants’ decades long "campaign of deception" about the impact fossil fuels have on climate change is causing lasting harm to Hoboken. Id. ¶ 222. This damage includes an increased frequency of flooding in the city, which requires large-scale and long-term remediation efforts; decreased property values; and increased insurance and property costs for Plaintiff and its residents. Id. ¶¶ 222-23. Hoboken has already been forced to expend hundreds of millions of dollars in remediation efforts after damage caused by extreme rainfall events, including Hurricane Irene and Superstorm Sandy. Id. ¶¶ 269-84. Despite these efforts and further remediation plans, designers acknowledge that a "fully comprehensive solution" is beyond Plaintiff's means. Id. ¶ 285. Plaintiff alleges that Defendants’ actions are the proximate cause of Plaintiff's need to invest in its substantial, yet incomplete, remediation plans. Id. ¶ 287.

Plaintiff filed its Complaint in New Jersey state court, alleging the following claims: public nuisance (Count One); private nuisance (Count Two); trespass (Count Three); negligence (Count Four); and violation of the New Jersey Consumer Fraud Act (Count Five). D.E. 1-2. Plaintiff seeks compensation for costs related to damage from Superstorm Sandy and similar events, as well as for Plaintiff's abatement and remediation efforts. See, e.g. , Compl. ¶ 306. Ultimately, the crux of Hoboken's Complaint is that Defendants knew that their products caused substantial harm to the environment. Yet, Defendants misled consumers for decades about the real risks of continued dependence on fossil fuels and continued to sell their products. Now, Hoboken wants help paying for the effects of climate change it has faced and will continue to face.

On October 9, 2020, Defendants Chevron Corp. and Chevron U.S.A., Inc. removed the matter to this Court.3 Defendants’ 168-page notice of removal ("NOR") states that removal is proper on multiple grounds, including federal question, 28 U.S.C. § 1331 ; jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1349(b) ; federal officer removal, 28 U.S.C. § 1442 ; and the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). D.E. 1. On December 11, 2020, Plaintiff filed the instant motion to remand. D.E. 94. After briefing was completed for the motion to remand, Defendants filed their motion to strike as to certain portions of Plaintiff's reply brief. D.E. 106.

II. STANDARD OF REVIEW

Pursuant to the federal removal statute, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed ... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court." Frederico v. Home Depot , 507 F.3d 188, 193 (3d Cir. 2007). A district court "must resolve all contested issues of substantive fact in favor of the plaintiff and must resolve any uncertainties about the current state of controlling substantive law in favor of the plaintiff." Boyer v. Snap-On Tools Corp. , 913 F.2d 108, 111 (3d Cir. 1990). Removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." Batoff v. State Farm Ins. Co. , 977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel Valley Auth. v. Union Switch & Signal Div. , 809 F.2d 1006, 1010 (3d Cir. 1987) ); see also Samuel-Bassett v. Kia Motors Am., Inc. , 357 F.3d 392, 396 (3d Cir. 2004).

III. ANALYSIS

At the outset, Defendants asked this Court to reserve decision on the motion for remand until the Supreme Court resolved the question of whether there is federal question jurisdiction in a number of factual and procedurally similar cases. Defs. Opp. at 7. Although the Supreme Court has decided the other matters such that a stay is no longer appropriate, the Court briefly addresses this issue because it provides helpful context.

As noted, this case is one of many similar suits brought by cities and states throughout the country to address Defendants’ alleged disinformation campaign regarding the effects of fossil fuels on global warming. Eleven of these cases were recently pending before the Supreme Court.4 In each, the respective plaintiff filed suit in state court and the defendants removed the matter on numerous...

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