State Lawsuit Against Big Oil Companies Tied Up by Jurisdiction

By TIM FAULKNER/ecoRI News staff 

PROVIDENCE — Rhode Island’s lawsuit against 14 fossil-fuel companies for their role in causing climate change is stuck in park and it could be there for a while.

Shortly after then-Attorney General Peter Kilmartin announced the lawsuit at press event last July, the fossil-fuel companies sought to have the case switched to federal court, a venue they expect to be more sympathetic to their defense.

Kilmartin’s legal action asserts that the oil and gas companies created a public nuisance under state law by failing to warn the public and regulators about the risks of climate change, an issue the companies were aware of for decades.

Although Chevron, Shell, and ExxonMobil asked to move jusristiction it doesn’t mean the case will be tried in U.S. District Court. That decision falls to Chief Judge William E. Smith.

At a Feb. 6 hearing in U.S. District Court, Smith heard from Chevron attorney Theodore J. Boutrous Jr. who argued on behalf of all defendants.

Boutrous contended that the case should be a federal decision because climate change and emissions are a global occurrence and emissions that impact Rhode Island are also emitted from other countries and states. Boutrous noted that some 14 similar lawsuits have been filed around the country and therefore federal oversight is needed to manage the question of climate-change liability.

“If it goes to the state courts it will become a complete mess,” Boutrous said.

Climate change, he said, “has to be something that is solved at the global level and something for the national government and Congress to deal with.”

Rhode Island assistant attorney general Neil X.F. Kelly and environmental attorney Victor Sher said the case must be decided in Rhode Island courts because it relies on violations of the federal Clean Air Act and nothing within the pollution document says federal laws preempt state laws.

“Reducing pollution is purview of state and federal government,” Kelly said.

Sher noted that the case isn’t focused on emissions but rather the deceptive and false statements made by the fossil-fuel companies regarding climate change.

The lawsuit “is about the ongoing campaign of deception,” Sher said. “The harm, though, is local to Rhode Island and that’s what this case is about.”

Smith told the full courtroom that the 2-hour hearing was much longer than most sessions to address jurisdiction. He said he was undecided about where the case should be heard and that it will likely require a full written opinion that will “take a long time.”

“I really don’t know what I’m going to do here,” Smith said.