PROVIDENCE — It’s a ruling that delves into dry matters of jurisdiction. But a Rhode Island federal judge’s decision in a climate change case is stirring a high-profile mix of praise and condemnation, including a dramatic reading by a US senator and a scathing column in Forbes magazine.
Rhode Island is suing big oil companies, claiming their products created a public nuisance in the state. The state is demanding the companies pay the costs of dealing with climate change.
The oil companies tried to get the case moved out of state court and into federal court, where experts say they stand a better chance of prevailing. But US District Court Chief Judge William E. Smith rejected that request in a July 22 ruling, which hinges on legal concepts such as the “general removal statute” and the “artful pleading doctrine.”
“While this court thinks itself a fine place to litigate, the law is clear that the state can take its business elsewhere if it wants,” Smith wrote.
Most of the 17-page ruling focuses on esoteric legal principles, but Senator Sheldon Whitehouse, Democrat of Rhode Island, took to Twitter on Aug. 2 to do a dramatic reading of the ruling’s “background” section, which summarizes the state’s case. By Tuesday, the Twitter video had been viewed more than 304,000 times.
“Defendants in this case have extracted, advertised, and sold a substantial percentage of the fossil fuels burned globally since the 1960s,” Whitehouse said, reading from the judge’s summary of the state’s complaint. “Defendants understood the consequences of their activity decades ago, when transitioning from fossil fuels to renewable sources of energy would have saved a world of trouble. But instead of sounding the alarm, defendants went out of their way to becloud the emerging scientific consensus.”
Whitehouse, who has made more than 250 Senate speeches about climate change, emphasized that the decision was written by a judge appointed by a Republican president (George W. Bush) and recommended by a then-Republican senator (Lincoln D. Chafee).
Also, Whitehouse said, “This decision returns the case to state court at a time where a recent California state appellate court decision (on lead paint) could lay out the legal pathway to victory under state-law public nuisance theory.”
Michael I. Krauss, a contributor to Forbes magazine, also quoted Smith’s ruling — but not in an admiring way.
In a July 30 column, he wrote, “Here is the remarkable language the judge used to describe what he called the ‘background’ of Rhode Island’s lawsuit — language the judge admitted he cribbed directly from Rhode Island’s complaint!”
Krauss, a professor at the Antonin Scalia Law School of George Mason University, blasted Smith’s decision.
“I write to bemoan a federal judge’s tolerance of a particularly egregious effort by a state to invoke this ancient tort (typically used to sanction those who blocked the public roads) to judicially create legislative policy,” he wrote.
Krauss noted that in 2018 a federal judge in California, William Alsup, dismissed climate liability lawsuits that San Francisco and Oakland filed against oil companies.
“As Judge Alsup impliedly states, it is absurd to allow a state jury to decide questions of national and international energy policy that the Constitution has clearly left to other branches of government,” he wrote. “Rhode Island profits enormously from the products of the very same petrochemical industry that it now claims constitutes a nuisance. Their suit is an invitation to legislate from the bench, or perhaps from the jury room.”
Bradley Campbell, president of the Boston-based Conservation Law Foundation, said, “Companies like Shell and Exxon have spent hundreds of millions of dollars to undermine climate science, while doing nothing to avert climate catastrophe. Rhode Island’s case against the oil companies is both courageous and overdue, and we’re watching it closely as our own cases against Exxon and Shell proceed.”
Sean Comey, spokesman for defendant Chevron, said, “We think all these cases belong in federal court given the claims are related to national and international issues. Regardless of whether the claims are in federal or state court, the claims are without merit and have been dismissed by every court that has heard them.”