Judge Keenan found that AEP and Kivalina spelled the end of New York's nuisance and trespass claims, despite the city's attempt to pin liability on sales, rather than emissions: "Under AEP and Kivalina, the Clean Air Act displaces the City's claims seeking damages for past and future domestic greenhouse gas emissions brought under federal common law", he wrote.
The city had argued that the defendants ― Chevron, ConocoPhillips, ExxonMobil, BP and Royal Dutch Shell ― had known about the risks posed by burning fossil fuels since the 1950s and had "engaged in an overt public relations campaign meant to cast doubt on climate science", an argument Keenan acknowledged in his decision.
But US District Judge John Keenan did not agree.
"To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the USA government", he said.
"The Mayor believes big polluters must be held accountable for their contributions to climate change and the damage it will cause New York City", a spokesman for New York City Mayor Bill de Blasio (D) said in a statement to Bloomberg on Thursday.
"Judge Keenan made that clear in his decision today", said Mr. Timmons in a statement.
"Traditional public nuisance claims such as these are best suited for state courts where they have been resolved for over a century", Wiles noted. "It's time that fossil fuel companies pay their fair share".
However, environmental law experts said judges trying similar cases in state courts might rule differently. As early as the mid-1980s, the judge's opinion states, "Exxon and other major oil and gas companies, including Mobil and Shell, took actions to protect their own business assets from the impacts of climate change, including raising the decks of offshore platforms, protecting pipelines from coastal erosion, and designing helipads, pipelines, and roads in the warming Arctic". He said courts have previously determined that interstate emissions from burning fossil fuels is a "federal concern" that has been "delegated to the Executive Branch as they require a uniform, national solution". Worldwide regulation of fossil fuel sales and emissions, the judges said, is precisely the sort of thing the Supreme Court had in mind. "Relying on Supreme Courtprecedent, federal judges in both NY and San Francisco have now held that these types of lawsuits can not proceed, whether asserted under federal law or state law".
As I said, cities and states may yet succeed against oil companies in state court, or may find ways to recraft theories to evade the conclusions Judges Keenan and Alsup reached.