alsup, wm hon

belated on judge 4/22

not sure where this stuff lives

deniers often cite

https:/**/thehill**.com/opinion/energy-environment/417416-suing-americas-manufacturers-calling-them-a-public-nuisance-wont/

Across the country, the jobs of manufacturing workers are being threatened by trial attorneys and politicians targeting manufacturers with baseless lawsuits based on the legal theory of “public nuisance,” attempting to hold manufacturers responsible for harms that are often far outside of their control. While trial lawyers have pursued such lawsuits for years, there has been a dramatic increase over the past year, as lawyers team up with states, cities and counties to sue manufacturers over climate change. This is why, one year ago, the National Association of Manufacturers (NAM) launched the Manufacturers’ Accountability Project (MAP) to help bring attention to the coordinated campaign behind these lawsuits and has made it clear that they will do nothing to improve the environment but could do serious damage to our legal system and our manufacturing industry.

California Manufacturers and Technology AssociationPresident Dorothy Rothrock has said the law firms are in it for the money. Indeed, the private attorneys representing the municipalities stand to earn hundreds of millions of dollars if they get a favorable ruling in court.

To date, 14 municipalities and one state have filed such litigation against dozens of energy manufacturers.{mosads}

So far, each lawsuit that has been considered in federal court has been dismissed, with the judges finding several flaws in the municipalities’ arguments. In dismissing the cases brought by San Francisco and Oakland, U.S. District Judge William Alsup rightly told the plaintiffs that the court is not the proper branch of government to address the issue of 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,” Judge Alsup wrote in his opinion. “The Court will stay its hand in favor of solutions by the legislative and executive branches.”

U.S. District Judge John Keenan agreed with Judge Alsup’s logic, dismissing New York City’s climate lawsuit against five of the country’s largest energy companies in July. Another fatal flaw in New York City’s argument, Keenan found, was that the plaintiff was attempting to hold only manufacturers accountable for climate change when it is a problem to which everyone contributes. “Aren’t the plaintiffs using the product?” Judge Keenan asked the city’s outside counsel. “Does the city have clean hands?”

These dismissals are an encouraging sign that the outstanding lawsuits against manufacturers — filed by Rhode Island, Baltimore, Boulder and others — will face a similar fate in the coming months.

It is also encouraging that a growing number of public officials are speaking out against the litigation. For example, in Colorado, the state’s newly elected attorney general Phil Weiser recently criticized the climate lawsuit filed by three municipalities in his state, saying he is “uncomfortable with the litigation because the case for it hasn’t been made.”

Oklahoma Attorney General Mike Hunterhas also commented on the lawsuits, saying, “In short, the courts are no place to determine national environmental policy. And public nuisance is not a theory the judges should employ in these kind of cases.”

Louisiana Solicitor General Liz Murrill said these suits “commandeer the rightful role of Congress to pass policy for the nation and are improper in terms of trying to legislate extraterritorial economic policy from the states in which they originate.”

We will continue to fight on behalf of manufacturing workers whose jobs are at stake. Manufacturing is too critical to the American economy to allow this threat to go unanswered.

NOTE: This post has been updated from the original to correct Judge Keenan’s first name and to clarify the lawsuits that have been dismissed.

Lindsey de la Torreis the Executive Director of the Manufacturers’ Accountability Project, a project of the National Association of Manufacturers’ Center for Legal Action. She previously served in the office of Presidential Personnel in the George W. Bush White House and in the Office of Associate Attorney General at the U.S. Dept. of Justice.

TAGS ABUSE OF THE LEGAL SYSTEM CLIMATE CHANGE LAWSUITS NUISANCE

pg&e wildfires tough on?

William Haskell Alsup (born June 27, 1945) is a Senior United States District Judge of the United States District Court for the Northern District of California.^[1]

Early life and career

Born in Jackson, Mississippi, Alsup received a Bachelor of Science degree in mathematics^[2] from Mississippi State University in 1967, a Juris Doctor from Harvard Law School in 1971, and a Master of Public Policy from Harvard University's John F. Kennedy School of Government in 1971.

He was a law clerk to Justice William O. Douglasof the Supreme Court of the United States from 1971 to 1972.^[3] Alsup was in private practice in San Francisco, California from 1972 to 1978, and was then an Assistant to the United States Solicitor General in the United States Department of Justice from 1978 to 1980. He returned to his private practice in San Francisco from 1980 to 1998 with Morrison & Foerster, when he briefly served as a special counsel in the Antitrust Division of the Department of Justice in 1998. He was again in private practice in San Francisco from 1998 to 1999.^[4]

Federal judicial service

On March 24, 1999, Alsup was nominated by President Bill Clinton to a seat on the United States District Court for the Northern District of California vacated by Thelton Henderson.^[4] Alsup was confirmed by the United States Senate on July 30, 1999, and received his commission on August 17, 1999. He took senior status on January 21, 2021.

Notable cases

Alsup presided over the 2012 and 2016 jury trials in Oracle America, Inc. v. Google, Inc.,^[5] which concerns the APIs of Java SE and Android. He drew media attention for his familiarity with programming languages, at one point criticizing Oracle counsel David Boies for arguing that the Java function rangeCheck was novel, saying that he had "written blocks of code like rangeCheck a hundred times or more".^[6] Alsup was widely described as having learned Java in order to better understand the case,^[7] although a 2017 profile in The Verge he stated that he had not learned a significant amount of Java, but had rather applied his knowledge as a longtime hobbyist BASIC programmer.^[6] The Federal Circuit overturned his determination that the Java API was not copyrightable.^[8] In 2021 the U.S. Supreme Court made no decision on copyrightability but decided that, even if copyright existed, Google's use of the API had been fair use and so not unlawful.^[9]

Alsup was also the presiding judge in what is believed to be the first trial against the U.S. no-fly policy, which is a list of people who cannot use commercial aircraft in the United States. Regarding the removal of people incorrectly included in the list, he ruled that, "[t]he government's administrative remedies fall short of such relief and do not supply sufficient due process."^[10]

In August 2020, Judge Alsup sentenced Anthony Levandowski to 18 months in prison for one count of trade secret theft,^[11] for stealing technology from Google's Waymo to found Otto, a self driving startup, then selling it to Uber six months later for $680 million.^[12] In May 2017, Judge Alsup had ordered Levandowski to refrain from working on Otto's Lidar and required Uber to disclose its discussions on the technology.^[13]

Deferred Action for Childhood Arrivals

In September 2017, Judge Alsup was assigned four cases by parties suing to halt President Trump's decision to end the Deferred Action for Childhood Arrivals program created by Barack Obama.^[14] On December 20, the Supreme Court unanimously issued an opinion urging Judge Alsup to consider arguments by the Trump administration that ending DACA was within executive authority and is not reviewable by federal courts.^[15]

On January 9, 2018, he granted a temporary injunction halting President Trump's rescission of DACA.^[16]

Dismissal of Lawsuit Against ExxonMobil

On July 27, 2018, Judge Alsup dismissed a lawsuit targeting ExxonMobil on the basis that two California cities, San Francisco and Oakland, could not prove the energy company was responsible for climate change in the state.^[17]

Interest in Sierra hiking and history

Alsup has spent much time in the Sierra Nevada mountains and published a book telling the story of the search for notable mountaineer Walter A Starr, Jr.^[18][19]

Awards and recognition

2013: Tara L. Riedley Barristers Choice Award, Bar Association of San Francisco

2013: Award of recognition from Lewis and Clark Law School.^[20]

Even though he called the dangers of climate change “very real” and noted that fossil fuel companies did not dispute that the burning of their products causes it, U.S. District Court Judge William Alsup said the issue should be handled by Congress and by treaty, not in a federal liability lawsuit.

“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 a 16-page opinion issued Monday.

While the ruling gave the fossil fuel companies what they wanted in this case, it’s just one of several similar lawsuits brought by U.S. cities and counties. Alsup’s ruling put the other cases in the spotlight, especially those before California state courts, where the law is friendlier to municipal plaintiffs.

Environmental lawyers who argued before Alsup said they were disappointed by his decision. But they said they were also encouraged because, after hearing testimony on the scientific consensus on climate change in an unusual tutorial, he got the industry to endorse the robustness of the science in a court of law.

He heard the case only because he ruled that it belonged in his court rather than in a state court, where the plaintiffs brought it.

In contrast, U.S. District Court Judge Vincent Chhabria ruled earlier this year that similar cases brought by Marin and San Mateo counties and the city of Imperial Beach could be best adjudicated under California law. That ruling on venue is being appealed by the industry.

Alsup’s ruling on the merits shouldn’t have much bearing on the other California cases, especially those that have survived attempts by the industry to have them moved to federal court, said Ann Carlson, an environmental law professor at the University of California at Los Angeles School of Law.

“The judge in those cases rejected the motion to remove and remanded the cases back to state court,” Carlson said. “State law will govern those cases, not federal law. And state law is much more favorable for the plaintiffs than federal law is.”

A Setback, But Cities Aren’t Giving Up

San Francisco and Oakland sued Chevron, Exxon, ConocoPhillips, Royal Dutch Shell and British Petroleum last year, claiming the companies knew the climate risks their products were creating yet engaged in widespread campaigns to downplay the dangers.

In a case that saw the Trump Administration weigh in on the side of the industry, the two cities were fighting to force the companies to pay what could have totaled billions of dollars for the coastal infrastructure to protect property and neighborhoods against sea level rise.

Alsup ruled that the solution is not a legal matter but rather a policy matter.

“While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches,” the judge wrote.

Reaction from Oakland and San Francisco officials predictably reflected both disappointment and resolve to continuing the fight though appeals.

“This is obviously not the ruling we wanted, but this doesn’t mean the case is over,” said John Coté, communications director for San Francisco City Attorney Dennis Herrera.

Although Alsup’s ruling was a setback, Coté said the case forced a public airing of climate science conclusive of the industry role in climate change. “Our belief remains that these companies are liable for the harm they’ve caused,” he said.

Oakland City Attorney Barbara Parker also expressed disappointment.

“We believe our lawsuit presents valid claims and these defendants must be held accountable for misleading the American people about the catastrophic risks to human beings and all forms of life on this planet caused by fossil fuel-driven global warming and sea level rise,” she said in a prepared statement.

Balancing Fossil Fuel Harms and Benefits

The Oakland and San Francisco lawsuits mirror those filed in the last nine months by six other California cities and counties, as well as by New York City and in Colorado and Washington state. Some of those lawsuits seek financial compensation to fight the climate risks that go beyond sea-level rise and include wildfire and drought.

The industry has challenged each of the California cases, saying they belong in federal court because federal statues under the Clean Air Act govern emissions and take precedence over state laws.

San Francisco and Oakland have faced an uphill battle ever since the cases landed in Alsup’s court earlier this year. Unusual requests by Alsup for a climate tutorial and legal essays addressing the question of how to hold fossil fuel companies responsible without losing the benefit of fossil fuels focused added attention on the cases.

It appears Alsup wrestled with that question.

“With respect to balancing the social utility against the gravity of the anticipated harm, it is true that carbon dioxide released from fossil fuels has caused (and will continue to cause) global warming,” the judge wrote.

“But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible.”

Ultimately he deferred responsibility for balancing the pluses and minuses of fossil use to the “expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.”

The judge also brushed aside the cities’ nuanced arguments that federal pollution laws were not binding in this case because they were suing the companies for producing the fossil fuel not for creating the emissions, said William Ruskin, a lawyer who has spent his career defending corporate giants against tort, environmental and liability claims.

Ruskin said the cities were themselves responsible for their crumbling infrastructure.

“The failure to protect against rising sea levels are just one piece of this larger phenomenon,” he said. “There is a failure on the part of our municipal, state and local governments to raise taxes or issue bonds to address these longstanding problems.”

The Difference in State Courts

Pat Parenteau, a professor of environmental law at the Vermont Law School who has advised some of the municipal plaintiffs, said Alsup’s ruling fails to address the central question of whether the cities have valid common law claims.

“This is a pollution case, this is what it is,” Parenteau said. By citing preemption and blaming the victims, Alsup “invokes these various doctrines but they don’t have any relevance to carbon pollution.”

Parenteau said he thinks that Alsup will be overturned on appeal.

The lawsuits, as initially filed in California state courts, rested on the state’s strong public nuisance statutes. The cities claimed that the oil and gas companies knowingly created a public nuisance from the heat-trapping greenhouse gases generated by burning fossil fuels, which were responsible for sea level rise that threatens to overwhelm their communities.

If a city prevails in such a case, it would break new legal ground, but would build on existing precedents. An analogous case instigated by California cities and counties against three paint manufacturers rested on the public nuisance theory that lead paint in old homes constituted a danger. After years of litigation, the companies lost in court and were ordered to pay more than $1 billion in damages. The companies continue to fight the ruling via legislation or ballot referendum.

NEWSCOURTS

U.S. judge throws out climate change lawsuits against big oil

San Francisco lawsuit aimed to hold oil companies liable for the Earth’s changing environment

By THE ASSOCIATED PRESS

June 25, 2018

SAN FRANCISCO — A U.S. judge who held a hearing about climate change that received widespread attention ruled Monday that Congress and the president were best suited to address the contribution of fossil fuels to global warming, throwing out lawsuits that sought to hold big oil companies liable for the Earth’s changing environment.

Noting that the world has also benefited significantly from oil and other fossil fuel, Judge William Alsup said questions about how to balance the “worldwide positives of the energy” against its role in global warming “demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.”

“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,” he said.

Alsup’s ruling came in lawsuits brought by San Francisco and neighboring Oakland that accused Chevron, Exxon Mobil, ConocoPhillips, BP and Royal Dutch Shell of long knowing that fossil fuels posed serious risks to the environment, but still promoting them as environmentally responsible.

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The lawsuits said the companies created a public nuisance and should pay for sea walls and other infrastructure to protect against the effects of climate change — construction that could cost billions of dollars.

The Oakland, Calif., city attorney’s offices did not immediately have comment. John Cote, a spokesman for the San Francisco city attorney’s office, said the office was reviewing the ruling and would decide its next steps “shortly,” but the lawsuit had “forced a public court proceeding on climate science.”

“We’re pleased that the court recognized that the science of global warming is no longer in dispute,” he said.

New York City, several California counties and at least one other California city filed similar suits.

The companies said federal law controlled fossil fuel production, and Congress encouraged oil and gas development. The harm the cities claimed was “speculative” and part of a complex chain of events that included billions of oil and gas users and “environmental phenomena occurring worldwide over many decades,” they said in court documents.

National Association of Manufacturers President and CEO Jay Timmons applauded the ruling in a statement. “From the moment these baseless lawsuits were filed, we have argued that the courtroom was not the proper venue to address this global challenge,” said Timmons.

Alsup brought in the world’s leading experts on climate change at an unusual hearing in March that he said was intended to educate him about the science behind the Earth’s warming.

The nearly five-hour hearing covered topics including the history of climate change research, carbon dioxide’s role as a greenhouse gas, melting ice caps, rising sea levels and extreme weather.

In Monday’s ruling, the judge said he accepted the “vast scientific consensus” that the combustion of fossil fuels has contributed to global warming and rising sea levels. But he questioned whether it would be fair to “ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded.”

ruling june 2018

https://www.documentcloud.org/documents/4560042-Judge-Alsup-Dismisses-Climate-Suit-Against-Oil

https://www.courthousenews.com/big-oil-must-face-california-city-and-county-lawsuits-over-climate-change/

cn seems legit

sAN FRANCISCO (CN) — The Ninth Circuit affirmed Tuesday that lawsuits seeking to hold the world’s largest energy companies financially liable for climate change and the rising sea levels that threaten California’s coastal communities should stay in state court, setting the stage for a legal offensive comparable to one that won multibillion-dollar awards against Big Tobacco.

The rulingcomes after a three-judge panel took a second look at a jurisdictional dispute between the energy companies and four municipalities after being ordered to do so by the U.S. Supreme Court.

San Mateo County, Marin County and the cities of Santa Cruz and Imperial Beach in San Diego County sued Chevron, BP and three dozen other oil, gas and coal companies in separate state courts in July 2017, claiming the fuel companies created a public nuisance by hiding for nearly 50 years that fossil fuel consumption was heating and damaging the earth.

After the cases were removed to federal court, the local governments fought to remand them to state court, arguing state law claims of public nuisance should be decided by California’s judicial system.

The energy giants objected, insisting the claims are governed by federal law because they implicate “uniquely federal interests,” including matters of interstate and international commerce and environmental policy.

In March 2018, U.S. District Judge Vince Chhabria remanded the cases to their respective state courts.

A unanimous three-judge Ninth Circuit panel upheld Chhabria’s ruling two years later, finding the federal court lacks jurisdiction to consider state law claims. Writing for the majority, U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, rejected the oil companies’ argument that because they provided fuel to the U.S. government through service contracts, they were “acting under” a federal officer’s directions.

The U.S. Supreme Court granted the energy companies’ petition for certiorari and sent the cases back to the Ninth Circuit to reconsider its ruling in light of the high court’s 2021 decision in BP p.l.c. v. Mayor & City Council of Baltimore, where it held that a federal appeals court can review a federal judge’s entire remand order. In that case, the city of Baltimore sued 26 oil companies for creating the greenhouse gases responsible for rising sea levels.

But Ikuta and her fellow panelists, U.S. Circuit Judges Morgan Christen and Kenneth Lee, declined to change their minds, sticking to the long-standing principle that federal courts should narrowly limit their reach to protect the jurisdiction of state courts.

“Our adherence to this doctrine does not change merely because plaintiffs raise novel and sweeping causes of action,” she wrote. “We therefore reject the broad interpretations of removal jurisdiction urged on us by the energy companies and affirm the district court’s remand order.”

The panel also rejected the argument that the energy companies’ conduct occurred on federal land and must be governed by federal law. The judges found that while some of the companies operated on federal land, such as the Elk Hills Naval Petroleum Reserve run by Chevron predecessor Standard Oil, the companies fail to account for how much of their conduct took place on federal enclaves. “The connection between conduct on federal enclaves and the counties’ alleged injuries is too attenuated and remote to establish that the counties’ cause of action is governed by the federal law applicable to any federal enclave,” Ikuta wrote.

The companies had also argued that the cases should stay in federal court because a portion of their fossil-fuel extraction took place on the Outer Continental Shelf, which falls under federal jurisdiction. “We reject this argument, because the connection between such conduct and the injuries alleged by the plaintiffs here is too attenuated to give rise to jurisdiction,” Ikuta wrote, reasoning that the counties’ lawsuit claim only local injuries, and focus on the companies’ “concerted campaign” to hide the harmful effects of fossil fuels from the public. “These allegations do not refer to actions taken on the Outer Continental Shelf,” she wrote.

The cities and counties praised the opinion as “clear and reasoned” in a statement.

“We appreciate the panel’s thorough review of this matter and are eager to return to the state courts where we filed our cases more than four years ago,” the plaintiffs said an email sent through the law firm Sher Edling LLP. “It is time to go to trial to hold these defendants accountable for deceiving consumers about the dangers associated with the use of their products, and to protect our taxpayers from having to bear the enormous costs resulting from that deception.”

The same Ninth Circuit panel found U.S. District JudgeWilliam Alsup lacked jurisdiction when he dismissed similar lawsuits brought by the cities of San Francisco and Oakland. The judges remanded the cases to Alsup so he can reconsider if alternative grounds justify keeping the two lawsuits in federal court, though their ruling Tuesday means those cases will likely end up in state court as well.

In an email, BP head of corporate communications Megan Baldino said the company could not speak about pending litigation. Chevron spokesman Braden Reddallsaid in an email that the company “respectfully disagrees” with the panel’s decision.

“Plaintiffs’ claims are based on allegations about worldwide carbon emissions and address global climate change — national and international issues that can be governed only by federal, not state, law. The court acknowledges that cases such as this one “raise novel and sweeping causes of action,'” Reddall said, noting that like Alsup, the Second Circuit had dismissed nearly identical claims as “sprawling” and overly ambitious. “Although the court has decided that plaintiffs’ claims for now can proceed past this preliminary stage, Chevron looks forward to additional challenges that should put an early end to this meritless lawsuit.”