A Court-Side Seat: Environmental Developments on the Ninth Circuit


On May 26, 2020, the U.S. Court of Appeals for the Ninth Circuit decided three significant environmental law cases. Two of these cases involved whether global warming tort cases could be brought in California state courts on, for example, a public nuisance claim, and whether the defendant energy companies had the right to have them removed to the federal courts.

County of San Mateo, et al.  v. Chevron Corp., et al. and City of Oakland v. BP  PLC, et al.
While acknowledging the immensity of the legal issues, the Ninth Circuit held that the federal removal statutes did not permit these cases to be removed to the federal courts. For one thing, state court jurisdiction was not preempted by the Clean Air Act. Accordingly, the court affirmed the ruling of Federal Judge Chhabria in the Chevron case, and vacated Judge Alsup’s ruling in the BP case that he had jurisdiction to hear this case pursuant to federal common law, and then to dismiss it. The court also remanded the case to Judge Alsup, and directed him to determine if there was an “alternate basis” for federal court jurisdiction based on the pleadings that an issue of ”navigable waters” was a concern.

Oakland Bulk and Oversized Terminal LLC  v. City of Oakland
The third case was treated strictly as a breach of contract case and not an environmental matter. The appeals court affirmed the ruling of the lower court (again Judge Chhabria) that the city breached its agreement with the plaintiff, which planned to develop and operate a commercial rail-to-ship terminal on the grounds of the closed Oakland Army Base. After the agreement was entered into, the City learned that coal would be shipped through the terminal, and held public hearings to review the issues involving these operations. The City took legislative action to bar the management of coal at the facility because it concluded there was substantial evidence that the project would be dangerous to health and safety. The Terminal sued, and the lower court held, after a bench trial, that the city breached its agreement. The city argued that this matter should be treated as an administrative law case, where its health and safety concerns would be the deciding factor.  But the trial court rejected this position, a ruling that the Ninth Circuit upheld. The appeals court reviewed at length, the expert evidence presented by the city and found it to be unreliable.