After two judges from the Northern District of California reached different conclusions in similar cases, The Ninth Circuit Court of Appeals will be next to determine whether climate-change-related tort actions may be properly heard in federal court. As previewed by Beveridge & Diamond in a March 30, 2018 News Alert, the two judges reached contrary decisions concerning the scope of federal jurisdiction over climate-change-related tort actions, thus teeing up the complicated issues of Clean Air Act displacement and federal common law for the Ninth Circuit. See California v. BP Plc, et al, No. 17-cv-6011 WHA, Memorandum Opinion and Order at *8 (N.D. Cal. 2018) (Alsup, J.); County of San Mateo v. Chevron et al., No. 17-cv-4929 VC, Memorandum Opinion and Order at 2-3 (N.D. Cal. 2018).

Each district judge relied upon the same climate change, emissions, and Clean Air Act displacement precedent of the Ninth Circuit and Supreme Court to reach their conflicting conclusions. Judge Alsup, in California, concluded that the plaintiffs’ climate-change-related nuisance claims, “though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere),” and thus “necessarily involve[] the relationships between the United States and all other nations [and] demand[] to be governed by as universal a rule of apportioning responsibility as is available.” California at 8. Accordingly, Judge Alsup determined that “plaintiffs’ claims, if any, are governed by federal common law,” sufficing federal jurisdiction. Id.

In contrast, Judge Chhabria, in County of San Mateo, concluded that the Clean Air Act displaces federal common law “claims that seek the abatement of greenhouse gas emissions,” as well as “claims against energy producers’ contributions to global warming and rising sea levels.” County of San Mateo at 1-2. For that reason, removal of the state climate-change related tort action was improper, because the relevant “federal common law [] no longer exists,” and the Clean Air Act does not preempt state torts. Id. at 3-5. Judge Chhabria has also yet to rule in similar cases, filed by Santa Cruz County and the cities of Santa Cruz and Richmond.

We will continue to monitor this litigation and report on significant developments in the Ninth Circuit or elsewhere.