City of N.Y. v. Chevron Corp.
| Citation | 993 F.3d 81 |
| Decision Date | 01 April 2021 |
| Docket Number | August Term 2019,No. 18-2188,18-2188 |
| Parties | CITY OF NEW YORK, Plaintiff-Appellant, v. CHEVRON CORPORATION, ConocoPhillips, Exxon Mobil Corporation, Royal Dutch Shell plc, BP p.l.c., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John Moore (Richard Dearing, Claude S. Platton, Nwamaka Ejebe, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY; Steve W. Berman, on the brief, Hagens Berman Sobol Shapiro LLP, Seattle, WA; Matthew F. Pawa, on the brief, Hagens Berman Sobol Shapiro LLP, Newton Centre, MA, for Appellant City of New York.
Theodore J. Boutrous, Jr. (Joshua S. Lipshutz, on the brief), Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Andrea E. Neuman, Anne Champion, on the brief, Gibson, Dunn & Crutcher LLP, New York, NY; Herbert J. Stern, Joel M. Silverstein, on the brief, Stern & Kilcullen, LLC, Florham Park, NJ, for Appellee Chevron Corporation.
John F. Savarese, Ben M. Germana, Wachtell, Lipton, Rosen & Katz, New York, NY; Sean C. Grimsley, James R. Jones, Bartlit Beck LLP, Denver, CO, for Appellee ConocoPhillips.
Theodore V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY; Dawn Sestito, O'Melveny & Myers LLP, Los Angeles, CA; Patrick J. Conlon, Exxon Mobil Corporation, Houston, TX, for Appellee Exxon Mobil Corporation.
David C. Frederick, Brendan J. Crimmins, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Appellee Royal Dutch Shell.
Nancy G. Milburn, Arnold & Porter Kaye Scholer LLP, New York, NY, Matthew T. Heartney, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, for Appellee BP p.l.c.
Catherine M. Sharkey, Crystal Eastman Professor of Law, New York University School of Law, New York, NY, for Amicus Curiae Catherine M. Sharkey, Crystal Eastman Professor of Law.
David S. Frankel, Assistant Solicitor General, Steven C. Wu, Deputy Solicitor General, for Letitia James, Attorney General, State of New York, New York, NY, for Amici Curiae States of New York, California, Maryland, New Jersey, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia.
Harold Hongju Koh, Michael J. Wishnie, Conor Dwyer Reynolds, Yale Law School, Rule of Law Clinic, for Amici Curiae Professors Sarah H. Cleveland, Zachary D. Clopton, William S. Dodge, Harold Hongju Koh, Kermit Roosevelt III, and Christopher A. Whytock.
Kimberly Ong, Natural Resources Defense Council, New York, NY, for Amici Curiae New York City Environmental Justice Alliance, THE POINT Community Development Corporation, and UPROSE.
Michael Burger, Jennifer Danis, Morningside Heights Legal Services, Inc., Columbia Environmental Law Clinic, New York, NY, for Amici Curiae National League of Cities, U.S. Conference of Mayors, and International Municipal Lawyers Association.
Corbin K. Barthold, Richard A. Samp, Washington Legal Foundation, Washington, DC, for Amicus Curiae Washington Legal Foundation.
Eric Grant, Deputy Assistant Attorney General, R. Justin Smith, Christine W. Ennis, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for Amicus Curiae United States of America.
Peter D. Keisler, C. Frederick Beckner III, Ryan C. Morris, Tobias S. Loss-Eaton, Sidley Austin LLP, Washington, DC; Steven P. Lehotsky, Michael B. Schon, Jonathan D. Urick, U.S. Chamber Litigation Center, Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America.
Philip S. Goldberg, Christopher E. Appel, Shook Hardy & Bacon L.L.P., Washington, DC; Linda E. Kelly, Peter C. Tolsdorf, Manufacturers’ Center for Legal Action, Washington, DC, for Amicus Curiae National Association of Manufacturers.
Thomas M. Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General, for Todd Rokita, Attorney General of Indiana, Office of the Attorney General, Indianapolis, IN, for Amici Curiae States of Indiana, Alabama, Alaska, Arkansas, Georgia, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, and West Virginia.
Yaakov M. Roth, Jones Day, Washington, DC; Robert A. Mittelstaedt, Jones Day, San Francisco, CA; Robert E. Johnson, Jones Day, Cleveland, OH, Kelly Holt, Jones Day, Boston, MA, for Amicus Curiae Professor Richard A. Epstein.
Before: Kearse, Sullivan, and Park, Circuit Judges.
The question before us is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is "no."
Global warming presents a uniquely international problem of national concern. It is therefore not well-suited to the application of state law. Consistent with that fact, greenhouse gas emissions are the subject of numerous federal statutory regimes and international treaties. These laws provide interlocking frameworks for regulating greenhouse gas emissions, as well as enforcement mechanisms to ensure that those regulations are followed.
The City of New York has sidestepped those procedures and instead instituted a state-law tort suit against five oil companies to recover damages caused by those companies’ admittedly legal commercial conduct in producing and selling fossil fuels around the world. In so doing, the City effectively seeks to replace these carefully crafted frameworks – which are the product of the political process – with a patchwork of claims under state nuisance law. For many of the same reasons stated by the district court (Keenan, J. ), we cannot condone such an action and we AFFIRM the dismissal of the City's complaint.
Global warming is one of the greatest challenges facing humanity today.1 Among the scientific community, there is near universal consensus that global warming is primarily caused, or at least accelerated, by the burning of fossil fuels, which emits greenhouse gases like carbon dioxide and methane into the atmosphere. Once released, those gases can remain in the atmosphere for hundreds of years, where they trap heat that would otherwise radiate into space.
According to the complaint, New York City "is exceptionally vulnerable" to the effects of global warming, such as rising sea levels, because of its "520-mile coastline." J. App'x at 76. So, in the aftermath of Hurricane Sandy, the City "launched a $20 billion-plus multilayered investment program in climate resiliency across all five boroughs." Id. at 107. These preparations have included constructing seawalls and other coastal armaments, enlarging and augmenting the City's storm and wastewater infrastructure, and implementing public-health programs designed to tackle the effects of heatwaves, among other measures meant to protect the public and City property.
Even though every single person who uses gas and electricity – whether in travelling by bus, cab, Uber, or jitney, or in receiving home deliveries via FedEx, Amazon, or UPS – contributes to global warming, the City asserts that its taxpayers should not have to shoulder the burden of financing the City's preparations to mitigate the effects of global warming. Rather, the City suggests that a group of large fossil fuel producers are primarily responsible for global warming and should bear the brunt of these costs. Included among that group are Defendants Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation (together, the "Domestic Producers"), BP p.l.c., and Royal Dutch Shell plc (together with BP, the "Foreign Producers" and, collectively with the Domestic Producers, the "Producers"). The Producers "are, respectively, the first (Chevron), second (Exxon), fourth (BP), sixth (Shell), and ninth (ConocoPhillips) largest cumulative producers of fossil fuels worldwide" since the mid-nineteenth century. Id. at 85.
As the City sees it, the Producers have known for decades that their fossil fuel products pose a severe risk to the planet's climate. The City alleges that, despite that knowledge, the Producers downplayed the risks and continued to sell massive quantities of fossil fuels, which has caused and will continue to cause significant changes to the City's climate and landscape.
The City freely admits that it is not able to halt the Producers’ conduct under any federal statute or international agreement. Indeed, it acknowledges that the Producers’ conduct is "lawful ... commercial activit[y]." City Br. at 19. Nonetheless, the City believes that it is appropriate 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." J. App'x at 45–46.
Understanding the context of this dispute requires some background knowledge about our nation's regulatory framework concerning environmental issues. The Clean Air Act was originally signed into law by President Lyndon Johnson in 1963 as "the nation's first modern environmental law." N.Y. Pub. Int. Rsch. Grp. v. Whitman , 321 F.3d 316, 319 (2d Cir. 2003). But it was not until seven years later, when Congress passed a round of significant amendments to the statute as part of the Clean Air Amendments of 1970, that the modern version of the Clean Air Act was born. See Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676.
" ‘[D]esigned to safeguard our precious air resources,’ " N.Y. Pub. Int. Rsch. Grp. , 321 F.3d at 319 (quoting Connecticut v. EPA , 696 F.2d 147, 151 (2d Cir. 1982) ), this statutory scheme "regulates pollution-generating emissions from both stationary sources, such as factories and powerplants, and moving sources, such as cars, trucks, and aircrafts," Util. Air Regul. Grp. v. EPA , 573 U.S. 302, 308, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014). "It is an intricate regulatory regime intended to ‘protect and enhance the...
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