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Three Key Errors in First Decision Dismissing Climate Nuisance Lawsuits

The San Francisco and Oakland climate cases were dismissed by federal judge William Alsup on Monday...Judge Alsup divided the cities’ suit against five oil majors into two halves – claims harms from for fossil fuel production within the United States, and claims for harms from fossil fuel production outside the United States.  In the first half, he ruled that the Clean Air Act displaces these claims – essentially, that because the CAA regulates emissions of CO2 and other greenhouse gases, cities cannot sue for damages caused by climate change... In the second half, Judge Alsup ruled that while conduct outside the U.S. is not regulated by the CAA, the “presumption against extraterritoriality” limits federal claims for such activity...This decision comes at a stage of the case where no evidence has been submitted; only the allegations of the complaint are at issue.  Yet Judge Alsup determined that “judgments in favor of the plaintiffs . . . would make the continuation of defendants’ fossil fuel production ‘not feasible.'”  Therefore, he reasoned, only Congress can decide whether to take that step; courts should not...Ultimately, Judge Alsup’s opinion suggests a reluctance to apply the ordinary legal rules to climate change cases..It’s not the plaintiffs here that are trying to create new legal rules in order to recover from fossil fuel companies; it’s the companies that are trying to create novel defenses to avoid the consequences of long-held legal principles.

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