Appellate Ruling Will Let DC Superior Court Decide if Energy Companies Liable for Climate Change

WASHINGTON — A lawsuit against energy companies for the pollution their fuels create will remain in District of Columbia Superior Court after a federal appellate ruling last week.

The lawsuit by the D.C. attorney general’s office accuses energy companies ExxonMobil Corp., BP PLC, Chevron Corp. and Shell PLC of violating local law by deceiving consumers about the extent their fossil fuels contribute to climate change.

The federal court decision indicates states and local jurisdictions are likely to play a bigger role in holding polluters accountable for climate change.

California, New York and Massachusetts are among states that have sued oil companies. They typically accuse the companies of deceptive advertising and suppressing scientific evidence about the harm from carbon emissions.

The D.C. lawsuit claims a violation of the Consumer Protection Procedures Act, which prohibits a wide variety of deceptive and unconscionable business practices.

It was originally filed in D.C. Superior Court but removed to U.S. District Court on a motion from the oil companies. The attorney general’s office filed to have the case sent back to the local court.

The energy companies argue the case should be adjudicated in federal court because it involves questions of national energy and environmental policy. Local courts have no jurisdiction because of the federal preemption of local law, the companies say.

Evidence of the federal government’s support for the industry can be found in its policies that promote fossil fuel use through tax benefits, subsidies and leases, according to the companies’ court filings.

Similar disputes are going on nationwide as states turn their frustration with climate change into lawsuits by their attorneys general.

“In each of these cases, the companies have removed to federal court, only to have the suits remanded to state court,” U.S. Circuit Judge Neomi Rao wrote in the D.C. Circuit Court of Appeals judgment.

A win for the attorney general in D.C. Superior Court could be devastating for oil companies if it sets a precedent followed by other jurisdictions.

The lawsuit seeks restitution of money spent by Washington, D.C., consumers to purchase fuels allegedly marketed as safe.

“Under the well-pleaded complaint rule, the cause of action chosen by the plaintiff usually determines the existence of federal jurisdiction,” the judgment says in reference to the Consumer Protection Procedures Act. “This case is no exception.”

After the appellate ruling this week, Chevron released a statement saying, “Addressing the global challenge of climate change requires a coordinated international policy response, not a series of baseless state and local lawsuits.”

D.C. Attorney General Brian L. Schwalb also released a statement, saying, “Today’s decision is a win for district residents and a major step forward in our effort to hold Exxon accountable for their decadeslong campaign to deceive the public about the environmental damage caused by fossil fuels.”

Even more of a threat to oil companies is a pending California lawsuit filed in September that follows a legal strategy similar to the one in Washington.

California has suffered some of the worst climate change through wildfires, flooding and high temperatures. A loss in court for these companies could cost them billions of dollars in compensation.

The California attorney general claims to have discovered internal documents showing oil companies and their trade association, the American Petroleum Institute, knew since at least the 1970s that their fossil fuels were likely to cause climate change and worsening natural disasters.

The state attorney general is seeking an abatement fund paid by the companies that would finance California’s recovery from future disasters caused by climate change.

The case in Washington is District of Columbia v. Exxon Mobil Corp. et al. in the U.S. Court of Appeals for the District of Columbia Circuit.

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