Theodore J. Boutrous Jr., with Gibson, Dunn & Crutcher, on Oct. 18, 2019.

Lawyers for a group of local California governments are pressing the U.S. Court of Appeals for the Ninth Circuit to allow them to pursue state court claims against some of the world's largest oil companies for infrastructure costs tied to rising sea levels.

A Ninth Circuit panel on Wednesday—Judges Sandra Ikuta, Morgan Christen and Kenneth Lee—heard arguments in a pair of appeals from two separate sets of cases where federal judges in San Francisco offered up divergent rulings: U.S. District Judge Vince Chhabria of the Northern District of California in March 2018 remanded cases brought by the city of Imperial Beach and San Mateo and Marin counties to state court finding that they weren't appropriate for removal to federal court. Meanwhile, Chhabria's colleague U.S. District Judge William Alsup denied a remand request in cases brought by the cities of Oakland and San Francisco and later dismissed their cases outright in June 2018 holding that climate change "deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case."

Arguing on behalf of Chevron Corp. and a collection of large oil companies Wednesday, Gibson, Dunn & Crutcher's Theodore Boutrous Jr. said that the plaintiffs' "sweeping, unprecedented global warming tort claim" was attempting to hold his clients liable for oil production going back to the dawn of the industrial revolution. He argued that the plaintiffs' claims were removable to federal court on several grounds, including that they attempted to hold the oil companies liable for oil production actions taken at the direction federal officials on federal property. In particular, he pointed to the defendants' operations on the Outer Continental Shelf, home to one-third of all domestic oil production, and the Elk Hills Naval Petroleum Reserve, where Chevron's predecessor Standard Oil operated an oil field under the Navy's direction for most of the 20th century.

"We don't need a lot of federal jurisdiction, we just need some'' for removal to federal court, Boutrous said urging the Ninth Circuit panel to overturn Chhabria's ruling. "This is a federal case because of the interstate nature of the case," he said. Boutrous noted that the argument comes a little more than two weeks after a separate Ninth Circuit panel found that 21 young plaintiffs failed to establish standing in a case seeking to force the government to provide a livable climate. There, Boutrous noted, that Judge Andrew Hurwitz wrote for a divided panel that some  "questions—even those existential in nature—are the province of the political branches" and inappropriate for judicial solutions.

Victor Sher of Sher Edling, arguing on behalf of the California municipalities, however, said that defendants had mischaracterized his clients' claims. They weren't, he contended, targeting oil production but what he characterized as a "50-year campaign" to mislead the government and the public about the long-term effects of greenhouse gas emissions on the Earth's climate and the science behind climate changes. "The complaint rests on the defective nature of the product and the campaign of deception and denial over the past 50 years," Sher said.

In the appeal of Alsup's ruling, Michael Rubin of Altshuler Berzon argued on behalf of Oakland and San Francisco, Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton & Garrison argued on behalf of the out-of-state oil companies, and Principal Deputy Assistant Attorney General Jonathan Brightbill argued on behalf of the government backing dismissal.