Written By Michael P. Theroux, Laura M. Gill, Thomas W. McInerney and Parker Mckibbon

On July 19, 2018, the United States District Court for the Southern District of New York followed an emerging trend in federal jurisprudence by dismissing a claim against several oil and gas producers in City of New York v. BP PLC, Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation, and Royal Dutch Shell, PC, No. 18 Civ. 182 (S.D. N.Y. July 19, 2018) [BP PLC]. The plaintiff, the City of New York, sought "compensatory damages for past and future costs incurred by the City to protect its infrastructure and property and to protect the public health, safety, and property of its residents from the impacts of climate change."

This action is one of several lawsuits in the United States against oil and gas producers. This decision follows our recent blog, Oil Producers Succeed in California Climate Change Action, which discusses a similar decision out of the Northern District of California (The City of Oakland v. BP, Chevron and Others, No. 17-CV-0611 (N.D. Cal. June 25, 2018) [Oakland]), where the Court also dismissed a climate change related complaint.

Summary of Decision

The City is alleging that the impacts of climate change are a public and private nuisance and a trespass. The City cites rising sea levels, heat related concerns and infrastructure costs as evidence of the harm arising from climate change.

The producers brought an application to dismiss the city's claim. The Court dismissed the complaint using similar reasoning to the Oakland decision. This included holding that the Clean Air Act displaces federal common law claims for alleged harm due to greenhouse gas emissions and that this type of decision-making is better suited for the legislative and executive branches rather than the judiciary.

Takeaways

This decision is yet another victory for oil and gas producers in climate change litigation. However, the City of New York has announced that it will appeal the decision. We expect that at least two appellate level courts will be asked to determine the validity of the lower court's dismissal of such claims.

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