The Courts Might Just Save Us on Climate

In the near-total absence of political leadership on climate change, our heroes are scientists and lawyers. They’re currently teaming up on a spate of huge lawsuits that could impose limits on polluters that the government has failed, or chosen not, to apply.

Why now?

Two recent developments have spurred these suits: scientific advancements that enable researchers to attribute climate change impacts to particular polluters, and the case brought against Exxon Mobil by the attorney generals of New York and Massachusetts. The former enables lawyers to make convincing liability claims against the world’s top polluters, while the latter opened up a treasure trove of documents showing exactly how Exxon and the fossil fuel industry in general has spent the last two decades deliberately hiding information and sowing doubt about climate science, which enables plaintiffs to claim that fossil fuel companies knowingly caused harm.

Ironically, it may be the government’s inaction that makes these cases stick, ultimately resulting in more economic damage to the companies involved than regulation would have inflicted on them. “One of the underlying realities is that the less this issue is regulated, the more pressure it puts on the courts to respond,” explains Jeffrey Gracer, an environmental lawyer and partner at Sive, Paget & Riesel in New York. “Because the way the law works, if the issue is being addressed in a comprehensive way then courts are less inclined to intervene. With the step back from the Paris Accord and the intention to roll back the Clean Power Plan, and all the other pronouncements coming out of Washington, the old common law remedies, which modern environmental law had really sought to make less relevant, become much more relevant because at the end of the day if you believe you’re being harmed and the government is not regulating the cause of that harm, that’s what common law is all about, that’s what the courts are there for.”

On the science front, the first report to really get things going was the “Carbon Majors” list, the culmination of more than eight years of work by Richard Heede, director & chief geographer at the Climate Accountability Institute in Colorado. Heede’s peer-reviewed study, originally published in the scientific journal Climate Change and updated annually in collaboration with the Carbon Disclosure Project, looked at all the emissions reported globally, and estimated those that were un-reported, using the Intergovernmental Panel on Climate Change (IPCC) method for creating greenhouse gas inventories, and traced more than 70 percent of the world’s CO2 emissions to just 100 companies. Subsequent reports have attributed sea-level rise and resultant storm surges and floods to climate change exacerbated by CO2 emissions, and quantified the role of climate change in human mortality during extreme heat waves.

“Statistically we’re likely to see more human costs, and scientifically our ability to attribute human-caused climate change in quantitative ways is improving and we can do it pretty quickly,” says Peter Frumhoff, a co-author of the heat-wave mortality study and director of science and policy for the Union of Concerned Scientists.

Cases to watch

The judicial system seems to be saving us on many fronts lately, at least until some of these new appointees take the bench. Climate liability cases to watch out for include:

Juliana vs. United States—Filed in 2015 in Oregon by a group of young people, ages 10 to 21, who are suing the federal government for inaction on climate change. Their complaint asserts that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. The Trump Administration has tried every which way to get this case thrown out and lost every time. Trial was set to start February 5th but has been postponed. Advocates are cautiously optimistic that the early retirement of Ninth District judge Alex Kozinski amid sexual misconduct charges bodes well for the case.

New York City vs. ExxonMobil, Chevron, Shell, BP, and ConocoPhillips—Filed in January, 2018, the suit alleges that the defendants—five of the largest publicly traded carbon producers—are responsible for historical contributions to, and damage from, climate change, and that they “engaged in a sophisticated climate denial effort which misled consumers, investors and the public and exacerbated the climate crisis by delaying meaningful action to reduce emissions.” It claims that these five companies produced 11 percent of global greenhouse gas emissions and asks that they pay for the cost of related damages. “In this litigation, the City seeks to shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat,” the lawsuit reads. The suit makes NYC the eighth, and by far largest, municipality to sue carbon majors for damages.

Marin County, San Mateo County, and the City of Imperial Beach vs. 37 Fossil Fuel Companies—In June 2017 several California municipalities teamed up to sue the top fossil fuel polluters for exacerbating climate change that had contributed to flooding and erosion in coastal areas, costing cities and counties millions. Although initially filed in state court, which many thought would help the defendants avoid some of the issues that arose in earlier federal cases, these cases were kicked up to federal court and are now awaiting a court date. The New York City case, on the other hand, has been filed in federal court but under state law. It remains to be seen which strategy, if any, will work.

San Francisco and Oakland vs. ExxonMobil, Chevron, Shell, BP, and ConocoPhillips—In September 2017 San Francisco and Oakland sued the same five companies being sued by New York City with a similar claim: that they contributed a significant amount of emissions, that they knowingly covered up information that would have mitigated the harm done, and that they should pay for the consequences.

City and County of Santa Cruz vs. 29 Fossil Fuel Companies—In December 2017 the city and county of Santa Cruz filed suit against 29 fossil fuel companies, including Exxon, alleging negligence on the part of the companies and seeking damages that could range up to hundreds of millions of dollars. In a move it’s been using to try to intimidate other cities as well, Exxon threatened legal action of its own, claiming that the municipalities also didn’t disclose climate change risks in their bond measures. “The stark and irreconcilable conflict between what these municipal governments alleged in their respective complaints and what they disclosed to investors in their bond offerings indicates that the allegations in the complaints are not honestly held and were not made in good faith,” reads the 60-page motion, which Exxon filed last week in a Texas court.

Massachusetts and New York vs. ExxonMobil—The suit that launched a dozen others is still in play and well worth watching. Massachusetts attorney general Maura Healy is fearless in the face of multiple attempts to quash her investigation into the company. Exxon has sued her in Texas, a suit later transferred to New York. She’s been twice subpoenaed by Rep. Lamar Smith’s House Science Committee and she’s been accused by Exxon—along with a coalition of GOP attorneys general—of violating the oil giant’s First Amendment rights. Exxon is continuing to use the First Amendment as protection for expressing “its opinion” about climate change and refusing to hand over subpoenaed documents. It’s likely they’ll be asked to turn those documents over, which could result in a whole other spate of suits.

Every week seems to bring a new announcement—like the one last week about the City of Richmond suing 29 fossil fuel companies to cover the cost of climate adaptation. In Richmond’s case, it hits close to home for residents, many of which have either worked at or been directly impacted by the city’s massive Chevron refinery.

It remains to be seen, of course, whether this tactic will work; oil companies have spent decades and many millions of dollars squashing all things climate related, and they seem to be up to the task of spending much more. These cases can drag on for years while lawyers try to avoid going to court. Then again, fossil fuel companies have never been faced with this much evidence of blatant deception. In one fell swoop the Exxon case has made it easier than it’s ever been to blame fossil fuel companies for climate change impacts more than we blame any one individual who drives too much or buys too much or otherwise consumes more than their fair share of resources. And the lawyers in that case have just begun to scratch the surface of documents the oil industry has worked hard to keep secret.

Should any one of these cases win, several more are likely to follow suit. Rising corporate concerns over climate liability risk may finally be the thing that drives down emissions in the U.S., but we’re likely to suffer plenty more losses in the meantime.