SAN FRANCISCO — Lawyers for some of the largest oil and gas companies in the world, and attorneys representing two Bay Area cities are set to descend on San Francisco Wednesday for what’s expected to be a courtroom first: A daylong lesson on the latest science on climate change.
U.S. District Judge William Alsup of the Northern District of California is overseeing a public nuisance lawsuit that the cities of Oakland and San Francisco filed last fall against six fossil fuel giants: BP plc, Chevron Corp., ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell plc. The two waterfront cities are seeking to hold the oil companies liable for the cost of infrastructure upgrades and remediation expected as they deal with effects of rising sea levels.
In much the same way the judge does in complex technology cases, Alsup has asked the parties for a tutorial. Alsup held a similar session on the laser science underpinning Waymo’s autonomous vehicle trade secret lawsuit against Uber Technologies Inc. and even asked the lawyers handling the litigation challenging the Trump administration’s rollback of the Deferred Action on Childhood Arrivals to bring him up to speed on the program.
In the global warming case, Alsup has asked both sides to “trace the history of scientific study of climate change” and fill him in on “the best science now available.” Since his initial order asking for the tutorial late last month, Alsup has proposed some more specific questions. For example: “Apart from CO2, what happens to the collective heat from tail pipe exhausts, engine radiators, and all other heat from combustion of fossil fuels? How, if at all, does this collective heat contribute to warming of the atmosphere?”
The oil companies’ lengthy line-up of defense counsel filed a motion to dismiss on Tuesday on the eve of the hearing, which argues a lawsuit is the wrong venue to address global issues like climate change. They also argued the emission of greenhouse gasses at the root of the plaintiffs claims are the sort of issue Congress has delegated to the U.S. Environmental Protection Agency.
“At bottom, plaintiffs are trying to regulate the nationwide—indeed, worldwide—activity of companies that play a key role in virtually every sector of the global economy by supplying the fuels that enable production and innovation, literally keep the lights and heat on, power nearly every form of transportation, and form the basic materials from which innumerable consumer, technological, and medical devices are fashioned,” the companies’ lawyers wrote. “The complaints contradict numerous federal statutes and raise myriad constitutional issues.”
Gibson, Dunn & Crutcher, Susman Godfrey and Stern Kilcullen & Rufolo represent Chevron, Arnold & Porter Kaye Scholer represent BP, King & Spalding represents ConocoPhillips, O’Melveny & Myers and Paul, Weiss, Rifkind, Wharton & Garrison represent Exxon, and Munger, Tolles & Olson represent Royal Dutch Shell.
Despite the forceful arguments in the motion to dismiss, the company’s aren’t expected to quibble with the scientific consensus on climate change and its human causes.
Gibson Dunn’s Avi Garbow, who was the EPA’s general counsel during the Obama administration, said Chevron plans to point Alsup to conclusions from the 2013 “Fifth Assessment Report of the United Nations Intergovernmental Panel on Climate Change,” which formed the scientific underpinning for the Paris Agreement. That includes, Garbow said, the report’s conclusion that it is “extremely likely” human influence has been the dominant cause of warming since the middle of the 20th century. Garbow said that Chevron is ”neither going to understate or overstate” the degree of confidence scientists have on their conclusions about the earth’s changing climate.
Matthew Pawa, one of the cities’ outside lawyers at Hagens Berman Sobol Shapiro, forwarded a request for comment to the San Francisco City Attorney’s Office. In an emailed statement, City Attorney Dennis Herrera said San Francisco looks forward to presenting the science and making its case.
“We’ll see whether Big Oil acknowledges the scientific consensus and its role in causing climate change or doubles down, once again, on deception,” Herrera said. “These companies knew their products were causing sea level rise, and they deceived people about it. Now, that bill has come due.”