City of New York v. BP p.l.c.

Filing Date: 2018
Case Categories:
Principal Laws:
State Law—Trespass, State Law—Nuisance
Description: Action brought by New York City against fossil fuel companies seeking damages for climate change-related injuries.
  • City of New York v. BP p.l.c.
    Docket number(s): 18-2188
    Court/Admin Entity: 2d Cir.
    Case Documents:
    Filing Date Type File Action Taken Summary
    05/24/2021 Not Available Download Mandate issued. On May 24, 2021, the mandate issued for the Second Circuit’s judgment affirming dismissal of New York City’s tort law-based case against fossil fuel companies.
    04/01/2021 Opinion Download Dismissal affirmed. Second Circuit Rejected New York City’s State Law Climate Claims Against Oil Companies. The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies. The Second Circuit’s decision largely followed the reasoning of the district court’s 2018 decision. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions, and found that Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), provided “sound reasoning” for determining that the Clean Air Act also displaced federal common law damages claims. The Second Circuit also rejected New York City’s contention that the Clean Air Act’s displacement of federal common law claims resuscitated its state law common law claims. Finally, the Second Circuit held that although the Clean Air Act did not displace New York’s federal common law claims addressing emissions outside the United States, foreign policy concerns foreclosed such claims. The Second Circuit said holding the oil companies liable for “purely foreign activity” would “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing on the prerogatives of the political branches.”
    06/17/2020 Letter Download Letter filed by Chevron Corporation in response to New York City's May 30, 2020 letter regarding the Ninth Circuit's decision in City of Oakland v. BP p.l.c.
    05/30/2020 Letter Download Letter filed by New York City concerning supplemental authority (City of Oakland v. BP p.l.c. and County of San Mateo v. Chevron Corp.).
    03/24/2020 Letter Download Letter filed by Chevron Corporation in response to City of New York's March 6, 2020 letter regarding supplemental authority.
    03/06/2020 Letter Download Letter filed by City of New York regarding supplemental authority.
    11/22/2019 Not Available Oral argument held.
    10/08/2019 Letter Download Notice of supplemental authority filed by City of New York regarding remand orders in Maryland, Rhode Island, and Colorado.
    09/30/2019 Notice Download Oral argument scheduled for Friday, November 22, 2019 at 10 AM.
    03/27/2019 Reply Download Corrected reply brief filed by City of New York.
    03/07/2019 Amicus Brief Download Brief filed by United States as amicus curiae in support of appellees.
    02/07/2019 Brief Download Brief filed by defendants-appellees Chevron Corporation, Exxon Mobil Corporation, and ConocoPhillips. Oil and Gas Companies Filed Briefs Urging Second Circuit to Affirm Dismissal of New York City’s Climate Change Case. U.S.-based energy companies filed their brief in the Second Circuit Court of Appeals in support of affirmance of the Southern District of New York’s dismissal of New York City’s lawsuit seeking to hold them liable under state tort law for climate change harms. The companies said the district court had properly determined that federal common law governed the City’s claims because they involved transboundary pollution. The companies also urged the Second Circuit to affirm the district court’s determination that no federal common law claim was pleaded. The companies argued that any claim based on domestic greenhouse gas emissions was displaced by the Clean Air Act and also that federal common law had never been applied “to hold manufacturers of lawful products liable merely because the users of those products create interstate pollution” or to supply “a remedy where the causal chain connecting the defendant’s conduct to the alleged harms extends back several decades, includes billions of intervening actors, and depends on complex phenomena that scientists continue to study.” The defendants also contended that the City did not state viable state law claims because causation requirements were not satisfied and because the doctrine of in pari delicto barred the City’s claims since the City and its resident “have long consumed Defendants’ products and have thus willingly contributed to” the emissions that allegedly caused the City’s injuries. Finally, the companies argued that the claims were preempted by the foreign affairs doctrine and the Clean Air Act and were barred by Commerce Clause, Due Process, and Takings Clauses.
    11/15/2018 Amicus Brief Download Amicus brief filed in support of New York City by National League of Cities et al. Local government associations filed a brief arguing that state law claims were available to address local climate change harms.
    11/15/2018 Amicus Brief Download Amicus brief filed in support of appellant by conflict of laws and foreign relations scholars. A group of conflict of laws and foreign relations law scholars contended that the district court had erred in applying the “presumption against territoriality” to common law claims; they asserted that the applicable conflict-of-laws rules would call for application of New York law. The legal scholars also argued that “judicial caution” did not provide a basis for limiting the geographic scope of New York law and that foreign affairs preemption did not apply.
    11/15/2018 Amicus Brief Download Amicus brief filed in support of appellant by environmental justice organizations. Environmental justice groups based in New York City submitted a brief to demonstrate to the court “that climate change, while experienced globally, is a problem with very local effects, especially on the City’s low-income communities and communities of color.”
    11/15/2018 Amicus Brief Download Amicus brief filed by Professor Catherine M. Sharkey in support of appellant. A professor with expertise in the areas of torts, products liability, and administrative law filed a brief arguing that the application of nuisance law in this case was “nothing extraordinary” but instead represented “a natural extension of longstanding theoretical and doctrinal principles of tort law.”
    11/15/2018 Amicus Brief Download Amicus brief filed by states and District of Columbia in support of appellant. New York State, seven other states, and the District of Columbia submitted a brief asserting that the district court’s reasoning was inconsistent with states’ authority to address environmental harms; the brief described state and local climate mitigation and adaptation efforts. The states’ brief also echoed the City’s arguments that the City’s claims were not displaced by federal common law or barred by the Clean Air Act.
    11/09/2018 Brief Download Opening brief filed by New York City. In Briefs to Second Circuit, New York City and Amicus Parties Argued for Revival of City’s Climate Change Case Against Oil and Gas Companies. New York City filed its opening brief urging the Second Circuit Court of Appeals to reverse the dismissal of the City’s lawsuit seeking to hold oil and gas companies liable for the adverse impacts of climate change. New York City argued that “long-established” common law causes of action under New York law provided a means of reallocating the costs imposed by the companies’ lawful economic activity. New York City also argued that its allegations did not present “one of the extraordinary cases where state law must be displaced by federal common law”; that the Clean Air Act did not bar the City’s common law claims; and that the district court’s concerns regarding separation of powers and the president’s ability to conduct foreign policy in the area of climate were “misplaced.” Five amicus briefs were filed in support of New York City. The defendants-appellees’ brief is due on February 7, 2019.
  • City of New York v. BP p.l.c.
    Docket number(s): 1:18-cv-00182
    Court/Admin Entity: S.D.N.Y.
    Case Documents:
    Filing Date Type File Action Taken Summary
    07/26/2018 Notice of Appeal Download Notice of appeal filed by City of New York.
    07/19/2018 Opinion and Order Download Motion to dismiss granted. Federal Court Dismissed New York City’s Lawsuit Against Fossil Fuel Companies. The federal district court for the Southern District of New York dismissed New York City’s lawsuit seeking to hold oil and gas companies liable for climate change harms. The court said federal common law governed the City’s claims because the claims were “ultimately based on the ‘transboundary’ emission of greenhouse gas emissions,” and require a uniform standard of decision. The court further concluded that the Clean Air Act displaced any federal common law claims. The court said Congress had “expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.” The court also rejected the City’s argument that if the Clean Air Act displaced their federal common laws claims, state law claims should become available. The court said such a result would be “illogical.” The court noted that the Clean Air Act regulates only domestic emissions but ruled that “to the extent the City seeks to hold Defendants liable for damages stemming from foreign greenhouse gas emissions, the City’s claims are barred by presumption against extraterritoriality and the need for judicial caution in the face of ‘serious foreign policy consequences.’” The court said litigating an action for injuries from foreign greenhouse gas emissions in federal court would “severely infringe” upon matters “within the purview of the political branches.”
    06/01/2018 Amicus Brief Download Amicus brief filed by Niskanen Center in support of plaintiff City of New York. On June 1, the Niskanen Center, a think tank “with a strong interest in protecting Americans property rights,” sought to file an amicus brief in support of the City. The brief disputed the defendants’ argument that applying state common law to their actions would violate a federal interest in uniform regulation of their conduct.
    05/30/2018 Amicus Brief Download Amicus brief filed by Indiana and 14 other states in support of dismissal. Fifteen states filed an amicus brief in support of the motion to dismiss. They argued that the claims raised nonjusticiable political questions, jeopardized the U.S.’s system of cooperative federalism, and threatened extraterritorial regulation. The states also argued that federal statutes had displaced federal common law.
    05/04/2018 Reply Download Reply submitted by Chevron, ConocoPhillips, and Exxon Mobil addressing common grounds in support of their motions to dismiss the amended complaint. On May 4, 2018, the parties completed the briefing on motions by the three U.S.-based fossil fuel company defendants to dismiss New York City’s climate change nuisance and trespass lawsuit. Two of the U.S.-based companies, ConocoPhillips and Exxon Mobil Corporation, also raised personal jurisdiction issues in separate motions. The court deferred addressing these issues until after resolution of the defendants’ arguments that the court lacks subject matter jurisdiction and that the amended complaint fails to state a claim. The court also allowed the two foreign-based defendants to defer responding to the complaint until after these issues are resolved. The court will hear oral argument on non-personal jurisdiction issues on June 13, 2018.
    05/04/2018 Reply Download Reply memorandum of law submitted by ConocoPhillips addressing individual issues in support of its motion to dismiss.
    04/25/2018 Memorandum of Law Download Memorandum of law submitted by plaintiffs in opposition to motion to dismiss. New York City responded to fossil fuel companies' motion to dismiss its climate change lawsuit by arguing that it had stated viable state law claims, that federal doctrines did not bar the claims, that the claims were justiciable, that the City had standing, that federal common law did not displace state law, and that, in any event, the City had pleaded viable federal common law claims that had not been displaced by the Clean Air Act. The City said the defendants’ assertion that climate change tort litigation would intrude on federal legislative and executive authorities had been rejected by the Second Circuit in Connecticut v. American Electric Power Corp. and that the defendants’ “overbroad” foreign powers argument would “invalidate a multitude of state laws on climate change.” The City also contended that neither the Clean Air Act nor other federal statutes conflicted with its claims.
    04/25/2018 Opposition Download Opposition submitted by New York City to ConocoPhillips' motion to dismiss. In a separate memorandum of law responding to ConocoPhillips’ argument that proximate causation principles barred liability, the City argued that basic tort law principles provided for individual tortfeasor liability where multiple tortfeasors have contributed to an indivisible harm and that the defendant companies could be held liable for the foreseeable consequences of their production and marketing of fossil fuels. The City distinguished its case from the gun and tobacco litigation cases cited by ConocoPhillips.
    03/30/2018 Memorandum of Law Download Memorandum of law submitted by Chevron, ConocoPhillips, and Exxon Mobil addressing common grounds in support of their motion to dismiss the amended complaint. In support of their motion to dismiss, the U.S.-based defendants argued, among other things, that New York’s claims, though labeled state law claims, actually arose under federal common law and that Congress displaced such global warming-based federal common law claims. Alternatively, the defendants asserted that the complaints’ allegations failed to state viable federal common law claims. In addition, the defendants argued that the Commerce Clause and Due Process and Takings Clauses barred the claims, that federal law preempted the claims, that the claims impermissibly infringed on the federal foreign affairs power, that the claims did not present a justiciable case or controversy, that the claims presented non-justiciable political questions, and that New York City lacked standing. The defendants also contended that state law claims were not viable because, among other things, allegations of proximate causation were lacking and New York City was “an active, voluntary participant in the unlawful activity that is the subject of the suit” and the claims were thus barred by the in pari delicto doctrine.
    03/30/2018 Memorandum of Law Download Memorandum of law submitted by ConocoPhillips addressing individual issues in support of its motion to dismiss. ConocoPhillips argued separately that “well-settled principles of proximate cause” barred liability in this case, as they had in similar cases against the gun and tobacco industries.
    03/30/2018 Memorandum of Law Download Memorandum of law submitted by Exxon Mobil Corporation in support of its motion to dismiss for lack of personal jurisdiction.
    03/16/2018 Complaint Download Amended complaint filed.
    03/02/2018 Letter Download Letter submitted jointly by parties regarding proposed scheduling order. In a letter to the court on March 2, the parties asked the court to defer further briefing on the U.S.-based defendants’ personal jurisdiction motions and also to defer briefing on foreign-based defendants’ motions to dismiss until after the court rules on the U.S.-based companies motion that raises issues under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. New York City’s response to the 12(b)(1) and 12(b)(6) issues is due on March 30.
    02/23/2018 Motion to Dismiss Download Memorandum of law filed by U.S.-based defendants addressing common grounds in support of their motions to dismiss. U.S.-Based Fossil Fuel Companies Filed Motions to Dismiss New York City’s Climate Change Lawsuit. The three U.S.-based fossil fuel companies sued by New York City in its lawsuit seeking damages for climate change impacts filed motions to dismiss on February 23, 2018. The three U.S.-based companies are Chevron Corporation, Exxon Mobil Corporation, and ConocoPhillips. In a joint memorandum of law, these companies argued that New York City’s claims arise under federal common law and that the Clean Air Act has displaced the federal common law or, alternatively, that the plaintiffs’ “expansive derivative theory of liability” fails to state a claim that complies with federal common law standards. The defendants also argued that the claims infringe on the federal foreign affairs power, are barred by the Commerce Clause and Due Process and Takings Clauses, and are preempted by federal law. In addition, the three companies contended that the City does not state viable state law claims and that the claims are not justiciable because they do not present a justiciable case or controversy; because they present political questions; and because the City lacks standing.
    02/23/2018 Motion to Dismiss Download Memorandum of law filed in support of Exxon Mobil Corporation's motion to dismiss for lack of personal jurisdiction.
    01/09/2018 Complaint Download Complaint filed. New York City Sues Five Largest Fossil Fuel Companies for Climate Change Damages. New York City filed a federal lawsuit against the five largest investor-owned fossil fuel producers seeking costs the City had incurred and would continue to incur to protect itself and its residents from the impacts of climate change. The City filed the lawsuit in the federal district court for the Southern District of New York. The City alleged that the defendants “produced, marketed, and sold massive quantities of fossil fuels” despite knowing for many years that the use of fossil fuels caused emissions of greenhouse gas emissions that would accumulate and remain in the atmosphere for centuries, causing “grave harm.” The City alleged that the five defendants were responsible “for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution” and that the defendants also were responsible “for leading the public relations strategy for the entire fossil fuel industry, downplaying the risks of climate change and promoting fossil fuel use despite the risks.” The City charged that the defendants’ actions constituted an unlawful public and private nuisance and an illegal trespass on City property. The climate change-related injuries alleged by the City included more frequent and more intense heat waves, extreme precipitation, and sea level rise. In addition to money damages, the City seeks an equitable order ascertaining the damages and granting an injunction to abate the public nuisance and trespass should the defendants fail to pay the damages for past and permanent injuries.