A landmark Federal Court ruling that dismissed efforts to force three opioid distributors to pay for the addiction crisis is already cited by oil and gas companies in at least one local government lawsuit seeking compensation for erosion, forest fires and other effects of global warming. .
In a Hawaii state court filing late last month asking to dismiss Maui County’s climate-related claims against Sunoco LP and other companies, fuels industry attorneys fossils cited the July 5 opioid ruling in West Virginia to argue that the climate liability case is not working properly. file a nuisance complaint.
“A public nuisance [claim] based on the sale and distribution of a product has been rejected by most courts because the common law of public nuisance is an inept means to deal with such conduct,” the oil industry lawyers wrote, citing the decision in the opioids case. Town of Huntington v. AmerisourceBergen Drug Corp.
The lawyers argued that extending nuisance laws “to cover the marketing and sale of petroleum products is inconsistent with history and traditional notions of nuisance.”
Maui’s lawsuit is one of nearly two dozen climate liability cases filed by local governments that want fossil fuel companies to help bear the cost of dealing with the effects of climate change, such as rising temperatures. sea level and flooding. Maui filed suit two years ago against 20 oil companies, citing a decades-long campaign of deception.
In opioid litigation, more than 3,000 state and local governments have targeted drug manufacturers and distributors since 2014. The cases — several of which have resulted in multimillion-dollar settlements — have been analyzed by lawyers on both sides of climate liability cases (green wireAugust 27, 2019).
But the recent West Virginia decision is forcing climate litigants to adjust their arguments.
In the case, the City of Huntington and the County of Cabell argued that AmerisourceBergen, Cardinal Health Inc. and McKesson Corp. had created a public nuisance by shipping millions of opioid pills to West Virginia. Local governments have requested more than $2.5 billion to reduce the flow of drugs and pay for drug abuse and treatment.
But Senior Judge David Faber of the U.S. District Court for the Southern District of West Virginia, in a 184-page decision, wrote that most courts dismissed claims of public nuisance involving “the sale and distribution of a product”.
Faber, a George H. W. Bush appointee, said the West Virginia Supreme Court of Appeals only applied the nuisance law in cases involving “conduct that interferes with public property or resources.” and that the state high court would likely decline to extend the law.
The oil and gas industry, which embraced Faber’s decision, has in the past argued that there are major differences between climate cases and opioid litigation.
Chief among these differences, according to the companies, is that oil and gas have been a necessary part of American security.
Ted Boutrous, a partner at Gibson, Dunn & Crutcher LLP who represents Chevron Corp. in a number of climate liability cases, including the Maui challenge, made that point in May 2021 during closing arguments against Delaware Attorney General Kathy Jennings (D) in the lawsuit against 31 fossil fuel companies.
“It’s not like an opioid case or an asbestos case,” Boutrous told a federal judge at the time. “This is a claim challenging the production of a product that has been essential to our national security.”
The West Virginia opioid ruling, however, “adds to the continuing case law that public nuisance is not about how you market and manufacture products,” said Phil Goldberg, special counsel for the draft. Manufacturers Responsibility, an initiative of the National Association of Manufacturers. which opposes the litigation of climate responsibility.
“There would be no limitation on these types of lawsuits if that were the case,” he said.
“Completely different situation”
Environmental lawyers have found common cause with the opioid cases, saying that just as drug companies apparently misled the public about the addictive nature of opioids, oil companies allegedly misled the public about the environmental dangers of burning fossil fuels.
But lawyers involved in climate litigation said West Virginia’s opioid ruling did not reduce their chances, noting that nuisance laws vary from state to state and that the ruling came from a federal court.
Most of the cases against the oil and gas industry have been filed in state courts and – like the opioid cases – rely on state-level laws such as common nuisance and consumer fraud. , with litigants arguing that climate change is a burden on local governments and that companies have contributed to the problem through misleading marketing. The cases have been embroiled in a jurisdictional battle for years, with industry lawyers urging judges to transfer cases to the federal bench where oil and gas companies believe they have a better chance of success.
Local courts have upheld the lawsuits, and federal appeals courts have largely ruled in favor of state jurisdiction. The Supreme Court sided with one of the industry’s first jurisdictional arguments and may soon have the chance to intervene again (climate wireJune 9).
David Bookbinder, Niskanen Center chief counsel and a member of the legal team representing three Colorado governments in their climate liability case, noted that the municipalities in the West Virginia opioid case won in two courts of state before losing in federal court.
If oil and gas defendants cited the West Virginia opioid ruling in the Colorado climate case, Bookbinder said, “I would say, ‘OK, here are two state courts in West Virginia whose judges are paid to interpret state law to say the exact opposite. ”
He said the climate cases were also about proving deception and showing that companies were “producing and marketing fossil fuels knowing they were going to cause global warming”. … It’s a completely different situation than a group of dispensing pharmacies.
In the opioid ruling, Faber wrote that West Virginia governments had “presented no evidence” that drug distributors had made misleading claims.
In a June filing opposing the dismissal of Maui’s climate case, county prosecutors noted that courts across the country have approved similar nuisance claims brought against manufacturers for injuries “caused by the misleading promotion of asbestos, cigarettes, chemicals, gasoline additives, guns, lead, opioids and other harmful products.
They argued that while the oil and gas industry argues that nuisance law does not cover injuries involving the sale of lawful products, the courts have dismissed such claims.
Industry lawyers in the Maui climate case also argue that the county is trying to hold the companies “accountable for statements they have made anywhere in the world, over the past decades, that allegedly led to an increase in the demand for fossil fuels”.
But Boutrous, Chevron’s attorney, said in a statement that Maui’s case does not meet Hawaii’s statute of limitations for prosecution.
“Plaintiff admits that his complaint has not identified a single alleged misrepresentation in the past 20 years, and certainly none within the two-year statute of limitations,” he said, adding that “federal courts across the country have always maintained that developing effective solutions to combat climate change is an issue of national and global importance that will require comprehensive policy solutions, not a patchwork of litigation.
A landmark Federal Court ruling that dismissed efforts to force three opioid distributors to pay for the addiction crisis is already cited by oil and gas companies in at least one local government lawsuit seeking compensation for erosion, forest fires and other effects of global warming. .
In a Hawaii state court filing late last month asking to dismiss Maui County’s climate-related claims against Sunoco LP and other companies, fuels industry attorneys fossils cited the July 5 opioid ruling in West Virginia to argue that the climate liability case is not working properly. file a nuisance complaint.
“A public nuisance [claim] based on the sale and distribution of a product has been rejected by most courts because the common law of public nuisance is an inept means to deal with such conduct,” the oil industry lawyers wrote, citing the decision in the opioids case. Town of Huntington v. AmerisourceBergen Drug Corp.
The lawyers argued that extending nuisance laws “to cover the marketing and sale of petroleum products is inconsistent with history and traditional notions of nuisance.”
Maui’s lawsuit is one of nearly two dozen climate liability cases filed by local governments that want fossil fuel companies to help bear the cost of dealing with the effects of climate change, such as rising temperatures. sea level and flooding. Maui filed suit two years ago against 20 oil companies, citing a decades-long campaign of deception.
In opioid litigation, more than 3,000 state and local governments have targeted drug manufacturers and distributors since 2014. The cases — several of which have resulted in multimillion-dollar settlements — have been analyzed by lawyers on both sides of climate liability cases (green wireAugust 27, 2019).
But the recent West Virginia decision is forcing climate litigants to adjust their arguments.
In the case, the City of Huntington and the County of Cabell argued that AmerisourceBergen, Cardinal Health Inc. and McKesson Corp. had created a public nuisance by shipping millions of opioid pills to West Virginia. Local governments have requested more than $2.5 billion to reduce the flow of drugs and pay for drug abuse and treatment.
But Senior Judge David Faber of the U.S. District Court for the Southern District of West Virginia, in a 184-page decision, wrote that most courts dismissed claims of public nuisance involving “the sale and distribution of a product”.
Faber, a George H. W. Bush appointee, said the West Virginia Supreme Court of Appeals only applied the nuisance law in cases involving “conduct that interferes with public property or resources.” and that the state high court would likely decline to extend the law.
The oil and gas industry, which embraced Faber’s decision, has in the past argued that there are major differences between climate cases and opioid litigation.
Chief among these differences, according to the companies, is that oil and gas have been a necessary part of American security.
Ted Boutrous, a partner at Gibson, Dunn & Crutcher LLP who represents Chevron Corp. in a number of climate liability cases, including the Maui challenge, made that point in May 2021 during closing arguments against Delaware Attorney General Kathy Jennings (D) in the lawsuit against 31 fossil fuel companies.
“It’s not like an opioid case or an asbestos case,” Boutrous told a federal judge at the time. “This is a claim challenging the production of a product that has been essential to our national security.”
The West Virginia opioid ruling, however, “adds to the continuing case law that public nuisance is not about how you market and manufacture products,” said Phil Goldberg, special counsel for the draft. Manufacturers Responsibility, an initiative of the National Association of Manufacturers. which opposes the litigation of climate responsibility.
“There would be no limitation on these types of lawsuits if that were the case,” he said.
“Completely different situation”
Environmental lawyers have found common cause with the opioid cases, saying that just as drug companies apparently misled the public about the addictive nature of opioids, oil companies allegedly misled the public about the environmental dangers of burning fossil fuels.
But lawyers involved in climate litigation said West Virginia’s opioid ruling did not reduce their chances, noting that nuisance laws vary from state to state and that the ruling came from a federal court.
Most of the cases against the oil and gas industry have been filed in state courts and – like the opioid cases – rely on state-level laws such as common nuisance and consumer fraud. , with litigants arguing that climate change is a burden on local governments and that companies have contributed to the problem through misleading marketing. The cases have been embroiled in a jurisdictional battle for years, with industry lawyers urging judges to transfer cases to the federal bench where oil and gas companies believe they have a better chance of success.
Local courts have upheld the lawsuits, and federal appeals courts have largely ruled in favor of state jurisdiction. The Supreme Court sided with one of the industry’s first jurisdictional arguments and may soon have the chance to intervene again (climate wireJune 9).
David Bookbinder, Niskanen Center chief counsel and a member of the legal team representing three Colorado governments in their climate liability case, noted that the municipalities in the West Virginia opioid case won in two courts of state before losing in federal court.
If oil and gas defendants cited the West Virginia opioid ruling in the Colorado climate case, Bookbinder said, “I would say, ‘OK, here are two state courts in West Virginia whose judges are paid to interpret state law to say the exact opposite. ”
He said the climate cases were also about proving deception and showing that companies were “producing and marketing fossil fuels knowing they were going to cause global warming”. … It’s a completely different situation than a group of dispensing pharmacies.
In the opioid ruling, Faber wrote that West Virginia governments had “presented no evidence” that drug distributors had made misleading claims.
In a June filing opposing the dismissal of Maui’s climate case, county prosecutors noted that courts across the country have approved similar nuisance claims brought against manufacturers for injuries “caused by the misleading promotion of asbestos, cigarettes, chemicals, gasoline additives, guns, lead, opioids and other harmful products.
They argued that while the oil and gas industry argues that nuisance law does not cover injuries involving the sale of lawful products, the courts have dismissed such claims.
Industry lawyers in the Maui climate case also argue that the county is trying to hold the companies “accountable for statements they have made anywhere in the world, over the past decades, that allegedly led to an increase in the demand for fossil fuels”.
But Boutrous, Chevron’s attorney, said in a statement that Maui’s case does not meet Hawaii’s statute of limitations for prosecution.
“Plaintiff admits that his complaint has not identified a single alleged misrepresentation in the past 20 years, and certainly none within the two-year statute of limitations,” he said, adding that “federal courts across the country have always maintained that developing effective solutions to combat climate change is an issue of national and global importance that will require comprehensive policy solutions, not a patchwork of litigation.