City of N.Y. v. BP P.L.C.

• Decision Date: 19 July 2018
• Docket Number: No. 18 Civ. 182 (JFK),18 Civ. 182 (JFK)
• Citation: 325 F.Supp.3d 466
• Parties: CITY OF NEW YORK, Plaintiff, v. BP P.L.C., Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation, and Royal Dutch Shell, PC, Defendants.
• Court: U.S. District Court — Southern District of New York

325 F.Supp.3d 466

CITY OF NEW YORK, Plaintiff,

v.BP P.L.C., Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation, and Royal Dutch Shell, PC, Defendants.

No. 18 Civ. 182 (JFK)

United States District Court, S.D. New York.

Signed July 19, 2018

FOR PLAINTIFF CITY OF NEW YORK: Zachary W. Carter, Susan E. Amron, Kathleen C. Schmid, Margaret C. Holden, Noah Kazis, CORPORATION COUNSEL OF THE CITY OF NEW YORK, Steve W. Berman, Matthew F. Pawa, Benjamin A. Krass, Wesley Kelman, HAGENS BERMAN SOBOL SHAPIRO LLP, Christopher A. Seeger, Stephen A. Weiss, Diogenes P. Kekatos, SEEGER WEISS LLP.

FOR DEFENDANT CHEVRON CORPORATION: Caitlin J. Halligan, Andrea E. Neuman, Anne Champion, Theodore J. Boutrous, Jr., William E. Thomson, Joshua S. Lipshitz, GIBSON, DUNN & CRUTCHER LLP, Herbert J. Stern, Joel M. Silverstein, STERN & KILCULLEN, LLC, Neal S. Manne, Johnny W. Carter, Erica Harris, Steven Shepard, Laranda Walker, Kemper Diehl, Michael Adamson, SUSMAN GODFREY LLP.

FOR DEFENDANT EXXON MOBIL CORPORATION: Theodore V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, M. Randall Oppenheimer, Dawn Sestito, O'MELVENY & MYERS LLP, Patrick J. Conlon, EXXON MOBIL CORPORATION.

FOR DEFENDANT CONOCOPHILLIPS: John F. Savarese, Jeffrey M. Wintner, Ben M. Germana, Johnathan Siegel, WACHTELL, LIPTON, ROSEN & KATZ, Tracie J. Renfroe, Carol M. Wood, KING & SPALDING LLP.

OPINION & ORDER

JOHN F. KEENAN, United States District Judge:

Before the Court is a motion by Defendants Chevron Corporation ("Chevron"), ConocoPhillips, and Exxon Mobil Corporation ("Exxon") (together, the "U.S.-based Defendants") to dismiss Plaintiff City of New York's (the "City") amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, Defendants' motion is granted and the City's amended complaint is dismissed.

I. Background

The following facts and allegations are taken from the amended complaint. Defendants BP P.L.C. ("BP"), Chevron, ConocoPhillips, Exxon, and Royal Dutch Shell ("Shell") (together, "Defendants") are multinational oil and gas companies. (Am. Compl. ¶¶ 16-20.) Defendants produce, market, and sell mass quantities of fossil fuels, primarily oil and natural gas. (Id. ¶ 1.) Defendants are, respectively, the first (Chevron), second (Exxon), fourth (BP), sixth (Shell), and ninth (ConocoPhillips) largest cumulative producers of fossil fuels worldwide from the mid-nineteenth century to present. (Id. ¶ 76.) Defendants are collectively responsible, through their production, marketing, and sale of fossil fuels, for over eleven percent of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the Industrial Revolution. (Id. ¶ 3.)

Climate science clearly demonstrates that the burning of fossil fuels is the primary cause of climate change. (Id. ¶¶ 69-70.) When combusted, fossil fuels emit greenhouse gases, including carbon dioxide, the "largest contribut[or]" to climate change of any source. (Id. ¶ 74.) Additionally, one of Defendants' primary fossil fuel products, natural gas, is composed of methane, which is the second largest greenhouse gas contributor to global warming. (Id. ) Global warming, or the gradual heating of the Earth's surface and atmosphere caused by accumulation of greenhouse gas pollution in the atmosphere, has led to hotter temperatures, longer and more severe heat waves, extreme precipitation events including heavy downpours, rising sea levels, and other severe and irreversible harms. (Id. ¶ 2.) The City alleges that, through their production and sale of fossil fuel products, Defendants have contributed to the temperature increases and global-warming-induced sea-level rise affecting New York City. (Id. ¶ 24.)

According to the amended complaint, Defendants have known for decades that their fossil fuel products pose risks of severe impacts on the global climate through the warnings of their own scientists, or those of the U.S. trade association, American Petroleum Institute ("API"). (Id. ¶¶ 72, 80.) Beginning in the 1950s, API began warning its members that fossil fuels pose a grave threat to the global climate. (Id. ¶ 82.) Between 1979 and 1983, the API and Defendants, their predecessors, and agents formed a task force to monitor and share climate research, called the "Climate and Energy Task Force" (the "Task Force"). (Id. ) The minutes from Task Force meetings show that the Task Force was aware of a scientific consensus on the likelihood of a significant global temperature rise resulting from increased carbon dioxide levels that would cause "globally catastrophic events." (Id. ) Defendants' internal documents also demonstrate that Defendants were aware of the "catastrophic" threat that fossil fuels posed to the global climate. (Id. ¶¶ 85, 88.)

Despite their early knowledge of climate change risks, Defendants extensively promoted fossil fuels for pervasive use, while denying or downplaying these threats. (Id. ¶¶ 93-94.) Defendants engaged in an overt public relations campaign intended to cast doubt on climate science. (Id. ¶ 94.) Initially, the campaign tried to show that climate change was not occurring or was not caused by Defendants' products. (Id. ) More recently, the campaign has sought to minimize the risks and harms from climate change. (Id. ) Meanwhile, beginning in the mid-1980s, Exxon and other major oil and gas companies, including Mobil and Shell, took actions to protect their own business assets from the impacts of climate change, including raising the decks of offshore platforms, protecting pipelines from coastal erosion, and designing helipads, pipelines, and roads in the warming Arctic. (Id. ¶ 91.) Although the amended complaint contains extensive allegations regarding Defendants' past attempts to deny or downplay the effects of fossil fuel use on climate change, in their motion to dismiss, Defendants do not dispute the scientific consensus that greenhouse gas emissions from fossil fuel use have contributed to global warming.

According to the New York City Panel on Climate Change ("NPCC"), the expert committee convened to provide scientific advice, guidance, and projections on climate change, climate change is already affecting New York City and will have a significant impact in the future. (Id. ¶ 10.) The average annual temperature in New York City has increased at a rate of 0.79°F per decade over the last thirty years. (Id. ¶ 57.) Without mitigation, the hotter summers projected for 2020 could cause an estimated thirty to seventy percent increase in heat-related deaths in the New York City. (Id. ¶ 61.) In addition, New York City is exceptionally vulnerable to sea-level rise due to its long coastline and its large floodplain that is home to more than 218,000 New Yorkers. (Id. ¶ 64.) Sea-level rise in New York City has averaged 1.2 inches per decade since 1900, nearly twice the observed global rate of 0.5 to 0.7 inches per decade over a similar time period. (Id. ¶ 57.) Approximately sixty percent of the relative sea-level rise is driven by climate-related factors. (Id. )

Given New York City's particular vulnerability to climate change, the City has been forced to take proactive steps to protect itself and its residents from the dangers and impacts of global warming. (Id. ¶ 117.) After Hurricane Sandy, the City launched a $20 billion-plus multilayered investment program in climate resiliency. (Id. ¶ 119.) The first steps of this effort include constructing levees and sea walls, elevating facilities and streets, and waterproofing and hardening infrastructure. (Id. ) In addition, the City must promptly take more robust measures to make New York City more resilient and protect the public and City property from climate change, including enlarging existing storm and wastewater storage facilities and installing additional new facilities, as well as associated infrastructure and pumping facilities, to prevent flooding in low-lying areas that are vulnerable to rising seas or increasingly severe downpours. (Id. ¶ 122.)

The City alleges that Defendants' ongoing conduct continues to exacerbate global warming and cause recurring injuries to New York City. (Id. ¶ 9.) Defendants continue to produce, market, distribute, and sell fossil fuels in massive quantities; to promote fossil fuel consumption in these massive quantities; and to downplay the threat posed by climate change. (Id. ¶ 131.) This ongoing conduct will cause increasingly severe injuries to New York City, including new and more significant encroachments upon and interferences with City property, and increasingly severe threats to public health. (Id. ) The City brings this suit to "shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat." (Id. ¶ 2.)

The City alleges three causes of action against Defendants: (1) public nuisance, (2) private nuisance, and (3) trespass. (Id. ¶¶ 132-152.) The City requests compensatory damages for past and future costs incurred by the City to protect its infrastructure and property, and to protect the public health, safety, and property of its residents from the impacts of climate change. (Id. at 73-74.) The City also requests an equitable order ascertaining damages and granting an injunction to abate the public nuisance and trespass that would not be effective unless Defendants fail to pay the court-determined damages for the past and permanent injuries inflicted (a "Boomer injunction"). (Id. at 74.)

On March 30, 2018, the U.S.-based Defendants moved to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6).¹ The U.S.-based Defendants argue in their joint motion that (1) the City's claims arise under federal common law and should be dismissed, (2) the City's claims are independently barred by numerous federal doctrines, (3) the amended complaint does not allege viable state-law claims, (4) the City's claims...