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Judge Throws Out Historic Climate Liability Cases Brought by Oakland and San Francisco
In a blow to the climate liability movement, Federal Judge William Alsup on Monday threw out a trendsetting lawsuit brought by the cities of Oakland and San Francisco against the five biggest fossil-fuel producing companies, The New York Times reported.
The two Bay Area cities were the first major U.S. cities to sue big oil over the costs of adapting to climate change, but other cities and counties around the country, including New York, Boulder and Seattle's King County, have followed their lead for a current total of 11 such lawsuits on the books.
Alsup, of the Federal District Court in San Francisco, stemmed the tide of the movement with his decision, ruling that the courts were not the appropriate place to decide issues relating to climate change.
"The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case," Alsup wrote in his opinion, according to The New York Times.
Alsup acknowledged the scientific consensus surrounding human-caused climate change and agreed that it posed a significant risk to the planet, but did not think it was ultimately fair to hold the defendants―Chevron, ConocoPhillips, ExxonMobil, BP and Royal Dutch Shell―responsible for supplying a global demand for energy that had transformed the modern world.
"Would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?" he asked in the statement.
"This is obviously not the ruling we wanted, but this doesn't mean the case is over," San Francisco city attorney spokesperson John Coté told The New York Times. "We're reviewing the order and will decide on our next steps shortly."
Coté added that the case had already been a success in at least one respect: It had led Alsup to order a historic court tutorial in March in which climate science experts testified about the proof for anthropogenic global warming.
"We're pleased that the court recognized that the science of global warming is no longer in dispute," he said. "Our litigation forced a public court proceeding on climate science, and now these companies can no longer deny it is real and valid. Our belief remains that these companies are liable for the harm they've caused."
Chevron was predictably pleased with the results.
"Reliable, affordable energy is not a public nuisance but a public necessity," vice president and general counsel for Chevron R. Hewitt Pate told The New York Times.
Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, told The New York Times it was too soon to tell if Alsup's decision would influence judges hearing similar cases around the country.
The cities had filed their suits against the companies using public nuisance law. In previous federal cases concerning climate change, the Supreme Court ruled that the Clean Air Act superseded nuisance law at the federal level and that it was up to the U.S. Environmental Protection Agency to deal with such complaints.
Oakland and San Francisco had tried to file public nuisance suits at the state level, while the defendants tried to move the cases to federal courts. Alsup decided the two cities' suits should be tried federally, but the federal judge reviewing the climate liability cases brought by Marin County, San Mateo County and Imperial Beach moved them to state courts.
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The unanimous verdict was announced Tuesday in San Francisco in the first federal case to be brought against Monsanto, now owned by Bayer, alleging that repeated use of the company's glyphosate-containing weedkiller caused the plaintiff's cancer. Seventy-year-old Edwin Hardeman of Santa Rosa, California said he used Roundup for almost 30 years on his properties before developing non-Hodgkin's lymphoma.
"Today's verdict reinforces what another jury found last year, and what scientists with the state of California and the World Health Organization have concluded: Glyphosate causes cancer in people," Environmental Working Group President Ken Cook said in a statement. "As similar lawsuits mount, the evidence will grow that Roundup is not safe, and that the company has tried to cover it up."
Judge Vince Chhabria has split Hardeman's trial into two phases. The first, decided Tuesday, focused exclusively on whether or not Roundup use caused the plaintiff's cancer. The second, to begin Wednesday, will assess if Bayer is liable for damages.
"We are disappointed with the jury's initial decision, but we continue to believe firmly that the science confirms glyphosate-based herbicides do not cause cancer," Bayer spokesman Dan Childs said in a statement reported by The Guardian. "We are confident the evidence in phase two will show that Monsanto's conduct has been appropriate and the company should not be liable for Mr. Hardeman's cancer."
Some legal experts said that Chhabria's decision to split the trial was beneficial to Bayer, Reuters reported. The company had complained that the jury in Johnson's case had been distracted by the lawyers' claims that Monsanto had sought to mislead scientists and the public about Roundup's safety.
However, a remark made by Chhabria during the trial and reported by The Guardian was blatantly critical of the company.
"Although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue," he said.
Many regulatory bodies, including the U.S. Environmental Protection Agency, have ruled that glyphosate is safe for humans, but the World Health Organization's International Agency for Research on Cancer found it was "probably carcinogenic to humans" in 2015. A university study earlier this year found that glyphosate use increased cancer risk by as much as 41 percent.
Hardeman's lawyers Jennifer Moore and Aimee Wagstaff said they would now reveal Monsanto's efforts to mislead the public about the safety of its product.
"Now we can focus on the evidence that Monsanto has not taken a responsible, objective approach to the safety of Roundup," they wrote in a statement reported by The Guardian.
Hardeman's case is considered a "bellwether" trial for the more than 760 glyphosate cases Chhabria is hearing. In total, there are around 11,200 such lawsuits pending in the U.S., according to Reuters.
University of Richmond law professor Carl Tobias told Reuters that Tuesday's decision showed that the verdict in Johnson's case was not "an aberration," and could possibly predict how future juries in the thousands of pending cases would respond.