A federal judge in San Francisco Wednesday will preside over the nation’s first-ever court hearing on the science of climate change, but don’t expect it to be a “Scopes Trial” for global warming research.
The hearing stems from a state lawsuit that San Francisco and Oakland filed against the world’s biggest oil companies for their greenhouse gas emissions. U.S. District Judge William Alsup agreed to move the case to his court, and in so doing, he ordered both sides to present him with a five-hour “tutorial” Wednesday on climate change science.
The hearing, first reported by McClatchy, is unusual and sure to be closely watched. But it promises to be far from a full-throated public debate on atmospheric science that some partisans have sought. Lawyers for Chevron, one of the defendants in the case, say the company accepts the international consensus that human activities are a main driver of the build-up of greenhouse gases in the atmosphere, and the resulting warming.
“On Wednesday, Chevron will not be engaging in a debate on climate change science,” said Avi Garbow, a lawyer for the oil company and former general counsel for the U.S. Environmental Protection Agency. Instead, Chevron will offer Alsup “a neutral assessment of the science,” he said.
Chevron, Exxon and other defendants in the case are pinning their hopes on persuading Alsup that the claims by San Francisco and Oakland have no merit. On Tuesday, they filed a motion to dismiss the lawsuit. The judge is expected to hear that motion at a hearing next month, after digesting Wednesday’s tutorial.
San Francisco and Oakland are among a number of coastal cities suing big oil over rising sea levels, which could have a major impact on them in the future. San Francisco, for instance, faces expenses of hundreds of millions of dollars to strengthen its defenses against seawater intrusion.
Alsup, an inquisitive and sometimes idiosyncratic judge appointed by former President Bill Clinton, has a reputation of inviting litigants to school him with “tutorials” on highly technical cases. Last year, he asked lawyers for a tutorial on self-driving car technology in a lawsuit that pits Google’s Waymo against Uber. He previously taught himself the Java programming language in deciding a lawsuit involving Oracle against Google.
Legal experts, including those for Chevron, say they’ve never previously heard of a court-ordered tutorial on climate change. “I’m not aware of a similar type of tutorial setup,” said Garbow, a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher. He will be making Chevron’s presentation Wednesday.
Alsup wants to the two sides to answer eight questions about the history of climate change, and how carbon dioxide and other greenhouse gases interact in the atmosphere. These questions range from the melt-off from previous ice ages to: “What are the main sources of heat that account for the incremental rise in temperature on Earth?”
Each side will have 60 minutes each to present material on the history of climate change science, and then another 60 minutes each to present on the best climate science currently available. But it will not be an evidentiary hearing, with both sides grilling each other. Only the judge will ask questions.
Why Alsup scheduled this tutorial before hearing motions to dismiss is not entirely clear. Supporters of the lawsuits say it suggests he sees merit in arguments by Oakland and San Francisco. The two cites contend the fossil fuel industry long knew about the potential consequences of its actions, but worked to block regulations and spread doubt about the emerging climate change science.
Lawyers for the oil and coal industries contend their earlier doubts about climate change merely reflected the uncertainty of the time. They also argue that they can’t be held liable for emissions that were regulated by the EPA under the Clean Air Act, as judges have ruled in previous climate change cases.
Wednesday’s tutorial has drawn wide attention, and the U.S. District Court in San Francisco has set up an overflow room with a video feed to accommodate observers wanting to monitor the hearing.
Gavin Schmidt, a climate modeler at NASA’s Goddard Institute for Space Studies, has been using Twitter as a crowd-sourcing site for scientists and others to offer answers to Alsup’s eight questions.
Climate science doubters have also gotten involved. On Friday, Willie Soon, an astrophysicist affiliated with the Heartland Institute, filed a brief in Alsup’s court stating that “there is no consensus” that recent global warming is caused largely by human activity, a claim contradicted by reports from the Intergovernmental Panel on Climate Change.
Such amicus briefs may be of little help to the oil companies, given that the Heartland Institute is one of the groups that Exxon allegedly funded with hundreds of thousands of dollars to spread doubts about the prevailing science. That funding is one focus of the ongoing lawsuit.
San Francisco and Oakland are among several California coastal cities and counties that have sued fossil fuel industries over climate change impacts. Those suits have triggered a blowback by Exxon, which has countersued the cities in a Texas court.
Santa Cruz city and county is leading one of the lawsuits. Another has been filed by Imperial Beach and Marin and San Mateo counties. In the latter litigation, U.S. District Judge Vince Chhabria is expected to decide soon if the case should be remanded back to state court. If that happens, it would be a setback for the oil companies, since California has established case law on industrial “nuisance claims,” unlike the federal courts.
There is also a climate change lawsuit filed by 21 children against the federal government, contending the government violated their constitutional rights by promoting usage of fossil fuels. That lawsuit is still ongoing. Earlier this month, the 9th Circuit Court of Appeals ruled against the Justice Department’s motion to halt the lawsuit, filed in federal court in Oregon.
Stuart Leavenworth: 202-383-6070, @sleavenworth