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Seattle and Vancouver poised to move forward on possible climate litigation


September 8, 2018
By Elena Connolly
Originally Posted on Western Wire

City officials in both Seattle and Vancouver, British Columbia are indicating their governments may be next to pursue climate lawsuits against energy companies.

The City Attorney of Seattle revealed this week that his office is considering filing such a lawsuit and is partnering up with class action law firm, Keller Rohrback L.L.P., to explore legal options for doing so.

Seattle’s willingness to pursue climate litigation was revealed in a statement Seattle City Attorney Pete Holmes provided ABC affiliate KOMO News. Activists had taken issue with an opinion piece Holmes wrote in the Seattle Times which justified actions his office had taken to press charges against protesters who had shut down roads and blocked emergency responders. Holmes’ statement was in response to accusations that his office was more concerned with prosecuting protestors than addressing issues of climate change.

“As I informed the Mayor and City Council in May, my office is in the midst of researching the fossil fuel industry’s climate impact on Seattle to inform potential forthcoming litigation,” Holmes told KOMO News. “We’re working with the Keller Rohrback law firm on this effort, and they’re operating on a contingency fee basis (they don’t get paid unless we secure settlement or victory in the courtroom). If/when the time comes that we have a viable legal strategy to move forward, you can expect that I’ll be submitting an op-ed that highlights the very real threat climate change poses to our planet.”

Meanwhile, local governments in British Columbia have voted to take action compelling energy companies to pay for damages resulting from severe weather events. The towns of Squamish and Whistler voted in favor of asking 20 of the world’s largest fossil fuel companies to reimburse these communities due to the prevalence of wildfires and low snow levels, which they attribute to climate change resulting from the use of fossil fuels.  The motion was supported by environmental groups My Sea to Sky and West Coast Environmental Law.

“Local governments face a choice between, on the one hand, fiscal negligence in just assuming that taxpayers will bear the full burden of these rising costs alone and, on the other, seeking to ensure that fossil fuel companies pay their fair share of climate costs,” West Coast Environmental Law Attorney Andrew Gage said in a news release.

Next week, the Union of British Columbia Municipalities will meet to consider a related motion, which would permit the UBCM member governments to send similar letters to the top 20 fossil fuel companies.

In Vancouver, one political party is running on a platform of filing similar lawsuits as those filed in American municipalities.

“OneCity is advocating that the City of Vancouver join British Columbia municipalities (supported by West Coast Environmental Law) in exploring how taking legal action could assign liability and help claim compensation for the costs of preparing for climate change,” wrote OneCity candidate Christine Boyle, who is running for a seat on the Vancouver city council.

If Seattle or Vancouver were to move forward with a climate lawsuit it would be joining more than a dozen other municipalities who have filed similar suits against energy producers for damages related to climate change. King County, Washington is among them, and is the county in which Seattle is located.

But such litigation has so far faced headwinds in the American courts.  Several cases, including the lawsuit brought by the City and County of Boulder and San Mateo County in Colorado, has been remanded from state court to federal court—where their chance of success is considered far less likely.  Lawsuits filed in New York City, San Francisco, and Oakland were dismissed earlier this year.  Judges in those cases based their decision on the fact that questions of climate change fall under the purview of the legislative and executive branches, not the judicial branch.

Washington State Governor Jay Inslee offered “tepid” support for the climate litigation trend, in comments provided to Axios.

“I support people having access to the courts. I support the right to bring this lawsuit. I wouldn’t be in favor of shutting them down,” he said.

While Gov. Inslee’s comments stopped short of reading as a ringing endorsement of the strategy, he has been outwardly supportive and active on other climate issues. Inslee is currently pushing voters to support a ballot initiative in November that would enact a carbon “fee” on major polluting facilities in the state. His administration also supported state legislation that would have mandated a carbon tax on fossil fuel emissions. The bill failed to pass last legislative session.

“…As discussed above, these types of ‘interstate pollution’ claims arise under federal common law, and the Clean Air Act displaces claims arising from damages caused by domestic greenhouse gas emissions because Congress has expressly delegated these issues to the EPA,” District Court Judge John Keenan wrote in his opinion dismissing the New York City climate case.  “Given the interstate nature of these claims, it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution.”

All of these cases are being filed by local municipalities with support from plaintiff attorney law firms who are working on a contingency fee basis. So far the arguments put forth have failed to sway federal judges, since federal court precedent does not fall in the plaintiff’s favor.

“We’ve seen these cases being brought time and again. We’re seeing the same group of attorneys shopping these cases to different municipalities,” said Lindsey de la Torre, Executive Director of the Manufacturers’ Accountability Project (MAP), during a recent media availability. “We’ve seen upwards of 23 percent in contingency fees so we expect that additional cases may be filed, but the reality is that judges in California and New York have dismissed these lawsuits, as well as the Supreme Court. We know there are appeals pending in the 9th Circuit and the 2nd Circuit, but we are confident the courts will concur with the decision that they should be dismissed.”

On the same media call, Utah Attorney General Sean Reyes pointed to “the litigious nature of our society which only increases and incentivizes that type of copycat conduct” when asked about possible lawsuits emerging in the Pacific Northwest.

Louisiana Association of Business and Industry President and CEO Stephen Waguespack cited the volume of cases and lack of success as evidence of “venue shopping” on the part of the plaintiff’s attorneys.

“When it comes to why are these petitions being filed in other areas when they’ve been thrown out, and I think it’s just good old-fashioned venue shopping,” Waguespack said during the MAP event. “It’s not uncommon for us to see there are a host of firms around the country who have made a lot of money venue shopping different cases around until they find the right court that will take the bait.”

The King County litigation is not Washington’s only foray into pursuing climate lawsuits. Just last month, a state judge dismissed another climate case brought by youth activists against the Washington state government, based on similar grounds as the New York City, San Francisco, and Oakland dismissals.

The lawsuit, filed by 12 minors, “suggest the State of Washington should strive to achieve a 96% reduction of CO2 by 2050.”

King County Superior Court Judge Michael Scott granted the defendants’ motion to dismiss on the basis that the questions posed were political in nature and therefore should be addressed by the legislature and the Governor, not the court system.

“The relief sought by Plaintiffs would require the Court to usurp the roles of the legislative and executive branches of our state government,” Judge Scott wrote in his opinion. “Plaintiffs ask the court to order and oversee the development of a far-ranging climate action plan that would involve a complex regulatory scheme. Any climate action plan and regulatory regime would require the assessment of numerous costs and benefits, balancing many interests, and resolving complex social, economic, and environmental issues. This policy-making is the prerogative and the role of the other two branches of government, not the judiciary.”

The lawsuit was one of many being filed on behalf of youth plaintiffs by the environmental group, Our Children’s Trust (OCT). As Western Wire has previously reported, OCT is underwritten by groups like the Leonardo DiCaprio Foundation and Rockefeller Brothers Fund.

The group has judicial actions pending in six other states, and lists additional legal actions in all 50 states.