Using the legal system to hold polluters responsible for the economic losses caused by climate change is becoming more popular. As the federal government uses a bob-and-weave strategy to duck its obligations to protect citizens at both the executive and congressional level, the judiciary is the last best hope for those seeking to hold those responsible for the massive consequences of climate change accountable.
Courts & Climate Change
San Francisco and Oakland are the latest plaintiffs to take their grievances to court. The two cities have filed suit in California state court, alleging that Chevron, ConocoPhillips, ExxonMobil, Shell, and BP not only have contributed to climate change through their business activities but deliberately failed to disclose what they knew about the relationship between carbon emissions and global warming from the public. Those companies, along with three leading coal producers, have been responsible for nearly 15% of all greenhouse gas emissions released since the Industrial Revolution, according to a 2016 Union of Concerned Scientists study.
The San Francisco Bay Area is especially vulnerable to rising sea levels. According to the Pacific Institute, about 4½ feet of sea level rise by 2100 would leave more than 75,000 people in San Francisco and Alameda County vulnerable to inundation. That much rise is at the upper end of projections but not beyond the realm of possibility. It would threaten $100 billion worth of existing property along the California coast. This most recent lawsuit is asking the courts to order the companies to pay into a fund which would then be used to defray the costs associated with protecting San Francisco and Oakland from encroachment by the sea.
Using the courts is becoming more common. Our Children’s Trust has filed suit in federal court on behalf of several young people. That suit is scheduled to go to trial early next year. In addition, two California counties and one city have also filed suit against 37 fossil fuel companies. There is a strong link between these recent suits and the tobacco litigation in the US that ultimately resulted in a more than $200 billion settlement.
The Tobacco Connection
Starting in the 1950s, US tobacco companies created a strategy of denial and deception to protect themselves from liability for deliberately selling products they knew could cause cancer and premature death. Those tactics were subsequently adopted by the fossil fuel industry for the same purpose — to create doubt about the science of climate change. Helped by a welter of interrelated lobbying groups masquerading as “think tanks” or “institutes” funded by the Koch Brothers and other industry actors, their strategy has been to spin a web of deception and lies so they can continue to gorge themselves on the profits derived from their activities.
The Same But Different
Carroll Muffett, president of the Center for International Environmental Law, tells ThinkProgress the cities’ suit is “definitely a continuation of the trend, but it’s actually a very different suit both in scale and the legal strategy behind it. The real important thing in their doing this is that they both highlight the significant costs that cities are having to pay now, and they open up another new and really powerful legal avenue that other city, county, and state governments can pursue to recoup those costs from polluters that played a major role in creating those costs.”
Muffett recognizes the similarities to the tobacco litigation cases, but adds, “It took three decades for a court to find evidence of corporate malfeasance [by tobacco companies]. The real difference is that plaintiffs are going into court now with that evidence of malfeasance in hand. These plaintiffs are much farther along at this stage in litigation than tobacco plaintiffs were.”
Not only is the scientific evidence much stronger, but investigations by the attorneys general of New York and Massachusetts are uncovering damning information regarding what ExxonMobil knew and when they knew it. The evidence suggest that internally, the harm from burning fossil fuels was fully realized in the 1970s but kept from customers and investors in order to protect the value of the company’s stock.
Science Has Evolved Rapidly
“The science of climate attribution has evolved rapidly, both in the ability to attribute greenhouse gas emissions to specific producers of fossil fuels and the ability to actually map those increased emissions to changes in temperature, sea level rise, and ultimately, the harms from specific extreme weather events,” Muffett says. He notes that the tobacco cases began with individuals suing the cigarette manufacturers. Class action suits and involvement by state governments didn’t happen until decades later.
“If you look at the scale and speed of the litigation, while the parallels to tobacco are there, the truth is climate litigation is going much farther, much faster, and the universe of potential plaintiffs and the scale of their potential damages is much greater,” Muffett said. The science about sea level rise is strong today, but is now expanding to show a correlation between fossil fuels and other climate related harm.
In what may be a prophetic statement, Muffett says jurisdictions such as Puerto Rico, the US Virgin Islands, and states along the Gulf Coast could soon look to the courts for assistance in meeting the impact of climate change. Just this week, Puerto Rico and many Caribbean islands have been devastated by Hurricane Maria. Houston was inundated by Hurricane Harvey in August and residents of Florida are only now coming home to the aftermath of Hurricane Irma. “We will see more of these suits and we will start seeing them faster, and the scale of what they address is only going to grow,” he says.
A Legal System Versus A Justice System
The question remains whether the courts are capable or even willing to address the issues these suits raise. One reason San Francisco and Oakland chose to file their claims in state courts is that federal law is ultimately ruled by the 9 members of the US Supreme Court, 5 of whom are dedicated, dyed-in-the-wool, Koch brothers–funded climate deniers. The state courts, particularly in California, have yet to be infected with the Koch brothers virus.
One of the organizations heavily funded by the Kochs is the Federalist Society, which rigorously promotes an extreme corporate agenda. One of the fruits of its advocacy is Citizens United, the Supreme Court decision that opened the floodgates for corporate money to pour into American election campaigns. On its website, the group claims it is “Dedicated to restoring our government to citizens‘ control.” But the truth is, it is solely focused on the rights of corporations and considers the needs of people to be an inconvenient impediment to corporate wealth and exploitation.
With such ideologues waiting for climate change litigation to wend its way through the courts to the hallowed halls of the Supreme Court, there is strong possibility that that those federal suits will ultimately be decided in favor of the corporate defendants. Whether or not such an insult to justice and reason would sit well with the citizens or might trigger a second American Revolution is something only those who can foresee the future could possibly know. America has a legal system. Many would argue that it has been many a year since it had a functioning justice system.
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