Theodore Boutrous Jr./Photo by Diego M. Radzinschi/ALM Theodore Boutrous Jr./Photo by Diego M. Radzinschi/ALM

A nuisance and trespassing tort claims suit brought by the city of New York against a number of energy companies over their role in climate change represented a repackaged federal common-law case that was more appropriately handled by the other branches of government rather than the courts, or the Environmental Protection Agency, which Congress empowered to regulate just the issues brought up in the suit.

This was the argument Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., speaking on behalf of the defendant energy companies, including BP, Chevron, ConocoPhilips and Exxon Mobil, made to U.S. District Judge John Keenan of the Southern District of New York during a hearing on the motion Tuesday.

Boutrous pointed repeatedly to the U.S. Supreme Court’s decision in American Electric Power v. Connecticut, which the defense has argued saw the court dispense with similar local public nuisance claims that worked their way through the U.S. Court of Appeals for the Second Circuit. Rather, the power was with the Legislature to act, as it had in passing the Clean Air Act, to regulate such a broad issue as climate change and things such as global emissions that contribute to the problem.

“These cases don’t belong in court,” Boutrous argued. “Lawsuits are not the way to do this.”

Additionally, Wachtell, Lipton, Rosen & Katz partner John Savarese, representing ConocoPhilips, argued that the Second Circuit’s series of tobacco lawsuits likewise shielded the defendants on proximity grounds, as the city, according to Boutrous, was trying to pin liability claims on the manufacturers for actions that started centuries ago during the industrial revolution.

Private attorney Matthew Pawa, arguing for the city, said that the defendants mischaracterized the city’s actions as an attempt to create a new type of tort. He noted that, in the AEP case, which dealt with state and other private claims over emissions specifically, some of the justices would have granted standing to some of the plaintiffs.

Throughout Pawa’s presentation, Keenan asked the city’s attorney if this case was, in fact, an emissions suit by another name. Pawa stated that it was not, as the issue was that manufacturers knew of the harmful effects of climate change and the link between their products, but chose not to act.

Pawa rebutted the suggestion that the issues presented were displaced by federal law, stating that the test for the issue had been established that an interest in uniformity was not enough.

Keenan also questioned both parties as to how much the city itself suffered from a question of itself being complicit in the issue. As the judge stated, one need only walk out of federal court down to police headquarters a block away to see numerous New York Police Department vehicles running on the very fossil fuels the defendants produce. While Pawa said the issue was largely beyond the scope of the pleadings, Boutrous acknowledge New York City “is participating, deeply” in the overall fossil fuel issue.

Keenan reserved his decision for a later date.