SAN FRANCISCO — Sometimes putting up a defense on all fronts has its drawbacks.

In lawsuits where two Bay Area cities are pursuing public nuisance claims against six fossil fuel giants related to the impending effects of global climate change, U.S. District Judge William Alsup appeared to be leaning toward the companies' way on the merits at a hearing Thursday.

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But at the end of the hearing, Alsup said he will hold off ruling on a motion to dismiss until he'd decided a flurry of jurisdictional and technical challenges mounted by defendants BP plc, ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell plc. Theodore Boutrous Jr. of Gibson, Dunn & Crutcher argued for the motion to dismiss for Chevron Corp. on behalf of all the defendants. San Ramon-based Chevron was the only defendant not challenging the court's jurisdiction in the case.

Alsup equated the other defendants' approach to the case as World War I-style trench warfare. The judge ruled those defendants that submitted declarations to bolster their jurisdictional arguments—all but Chevron and Exxon—had opened themselves up to discovery on those issues.

“You all want all these trenches,” said Alsup to the courtroom half-full of defense lawyers. “I'll give you the trenches.”

The down note at the hearing's conclusion tempered what had otherwise offered plenty of positive moments for the oil company defendants. Lawyers at Hagens Berman Sobol Shapiro sued the companies last year on behalf of the cities of Oakland and San Francisco, claiming the defendants should be forced to pay damages to the cities to mitigate the effects of global climate change. The suit further claims the companies intentionally misled the public and the government about the climate effects of the fossil fuels they produced.

Hagens Berman's Steve Berman, arguing for the cities Thursday, said the lawsuit isn't as “novel” or “unprecedented” as the defendants attempted to make it out to be.

“The law of nuisance has been around forever and it has responded to changes of mankind,” Berman said. He also said that while the primary conduct giving rise to the cities' nuisance claims was fossil fuel production, the companies' efforts to obscure the scientific debate over climate change and mislead consumers about the effects of burning fossil fuels were “plus factors” that showed the companies were acting intentionally.

Arguing on behalf of the companies, though, Boutrous said that plaintiffs were asking Alsup to extend federal common law to cover fossil fuel production—production Congress has explicitly encouraged.

“The plaintiffs are asking this court to basically throw caution to the wind and create a brand-new novel extraordinary tort,” Boutrous said. “Congress from all indications plainly does not want the federal courts to create a new tort for conduct that Congress has expressly endorsed and authorized.”

Alsup picked up on Boutrous' theme later in conversation with Berman.

“Didn't Congress tell the people in Texas and everywhere else, 'Get out there and drill for oil,'?” asked Alsup, noting that every president in recent memory had talked about making the country energy-independent. “You're saying we shouldn't have increase production?”

Berman replied that the companies kept ramping up production even though they knew better than anyone it was going to harm the environment.

“If the nation was saying 'Go ahead and do it,' how can we hold them liable for that?” Alsup asked.

Alsup also said Berman was asking the company to pay damages on something “that hasn't even occurred yet and may not occur until you and I are long gone.”

Near the conclusion of Thursday's hearing, Alsup asked each side to brief whether he should weigh the benefits and harms of fossil fuel production in considering the plaintiffs' nuisance claim. Berman contends that since the cities aren't seeking an injunction barring further production, the judge only needs to consider the harms. But Alsup wasn't so sure.

“If the test is a balancing test of what is reasonable or not, I look at the broad sweep of history and see that we needed oil and fossil fuels—coal being one of them—to get from the 1850s or 1859 when they struck oil in Pennsylvania to the present,” Alsup said. “There've been huge, huge benefits.”

Aside from Gibson at the hearing for Chevron, lawyers from Arnold & Porter Kaye Scholer represented BP, King & Spalding represented ConocoPhillips, Paul, Weiss, Rifkind, Wharton & Garrison represented Exxon, and Munger, Tolles & Olson represented Royal Dutch Shell.