Ask a Scientist: While Nations Dither, US Cities, Counties, & States Are Suing Fossil Fuel Companies

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Originally published by Union of Concerned Scientists, The Equation.
By Elliott Negin

President Joe Biden kicked off the United Nations’ 26th Conference of the Parties (COP) in Glasgow, Scotland, earlier this month by warning delegates that there is only a “brief window left before us to raise our ambitions, and to [rise] to meet the task that’s rapidly narrowing.”

Read @ElliottNegin's conversation with L. Delta Merner, lead of UCS’s Science Hub for Climate Litigation, after she moderated a workshop about the responsibilities of governments and fossil fuel companies in the #ClimateCrisis at #COP26. https://t.co/hdDMVL3CEC pic.twitter.com/Sf4YArv2ED

— Union of Concerned Scientists (@UCSUSA) November 12, 2021

Whether the more than 100 nations represented at the COP — or the US Congress for that matter — will heed Biden’s warning remains to be seen, but in the meantime, US states, counties, and cities are not sitting idly by. They have opened a new front on their own.

Over the last four years, at least 29 of them have filed climate lawsuits in state courts against major fossil fuel companies for fraud or damages or both, and 19 of those suits cite UCS documentation, according to L. Delta Merner, lead of the Science Hub for Climate Litigation, which UCS launched in August 2020 to provide relevant scientific and historical information to affected communities, public officials, and lawyers in climate cases.

Many of those cases, including those filed by Charleston, South Carolina; Rhode Island; and San Francisco, aim to hold specific companies accountable for damages caused by climate change-related impacts, including drought, intensified storm surge, sea level rise, and increased flooding and precipitation. Other lawsuits, such as ones filed by Massachusetts, Minnesota, and most recently Vermont, charge that specific companies violated consumer protection and common laws by defrauding their residents through false advertising and other misrepresentations about their products’ risks. Among the defendants are BP, Chevron, ExxonMobil, Royal Dutch Shell, and the American Petroleum Institute, the largest US oil and gas industry trade association.

I last spoke with Dr. Merner about the status of US climate lawsuits for an October 2020 column, and since the first of this year, there have been four new lawsuits filed in state courts against fossil fuel companies. I was able to catch up with her for an update after she moderated a workshop at the Glasgow COP.

EN: As I mentioned in my intro, so far there have been four new climate lawsuits this year. Two of them, filed by Annapolis and Anne Arundel County in Maryland, cite UCS materials. Let’s start with Annapolis, which had some terrible flooding a couple of weeks ago.

DM: Annapolis, the capital of Maryland, is a historic city located on the Chesapeake Bay. For much of the city’s history, the bay has given it its strength and character. Today, however, the Chesapeake Bay is rising and threatening the very city it built.

Annapolis is now experiencing more flooding days because of sea level rise. By 2030, models predict that the city will suffer flooding 200 days of the year. Seven of the highest water levels since 1937 have occurred since 2000, putting the city’s residents and rich history at risk. At the end of October, on Halloween weekend, the city was hit by storm that triggered 4-foot high floodwaters at high tide, forcing residents to use kayaks and canoes to negotiate its streets.

With flooding now a constant threat, Annapolis is adopting infrastructure plans to hold back the encroaching sea. The city estimates that it will need to spend more than $45 million on just 4 miles of seawalls by 2040 to help offset the impacts from sea level rise. Faced with this reality, the city investigated the root causes of its problem. No surprise, the root cause connected back to the fossil fuel industry.

In February, Annapolis became the 25th jurisdiction in the country to file litigation against fossil fuel companies. The suit argues that the companies and their leading trade organization should be held liable for climate damages and adaptation costs.

For decades, the fossil fuel industry has known that burning fossil fuels would lead to irreversible global climate change. Instead of acting on that knowledge, these companies and their surrogates launched — and continue to design and fund — deceptive greenwashing campaigns to manufacture doubt about the reality and seriousness of climate change. These companies — BP, Chevron, ExxonMobil, Royal Dutch Shell, to name a few — have knowingly profited off the sale of products that they have long known are destructive. The time has come for these companies to pay for the damage they have caused.

The Annapolis lawsuit also points out the inequity of climate damages. The lawsuit states that climate change “will disproportionately impact people of color, people living in poverty, and other vulnerable communities.” If governments and corporations place the burden of adaptation on local people, those inequalities will be exacerbated.

Annapolis’s lawsuit simply asks that fossil fuel companies bear their fair share of responsibility for the damage caused by their products. As millions of dollars needed for a response to climate change impacts come due, states, counties and cities will have to ask: How can we afford climate adaptation measures — ideally equitable adaptation measures — and who should foot the bill?

Annapolis has been standing since 1649. I hope my state’s capital will remain standing in the face of climate change.

EN: Annapolis is the county seat of Anne Arundel County, which has more than 530 miles of shoreline on the Chesapeake Bay. The county is seeking compensation and punitive damages from two dozen oil and gas companies, including BP, Chevron, ExxonMobil, and Shell, and the American Petroleum institute, the largest oil and gas trade association in the country. How did the county use UCS materials?

DM: Anne Arundel County is facing the same climate threats as Annapolis. Again, as costs for climate damages and adaption are piling up, Anne Arundel County is arguing that taxpayers should not be held responsible for the actions and decisions made by a few dozen companies.

The Anne Arundel lawsuit is particularly interesting because it named the American Petroleum Institute (API) as a defendant. UCS and others have detailed the role that API has played in spreading disinformation and the lawsuit cites a UCS report that documents the connection between API and Exxon. API collaborated with Exxon and other companies to emphasize uncertainty about climate change, prevent meaningful government policy, and ultimately create the crisis we face today.

EN: The other two lawsuits, filed by New York City and Vermont, sued fossil fuel companies for false advertising and deceptive trade practices. What can you tell us about those suits?

DM: The suits brought by Vermont and the New York City focus specifically on consumer protection as a way to hold companies accountable for fraud — for lying to or misleading their customers. These two cases argue that specific fossil fuel companies were aware of the harms that burning their product would cause, but instead of acting responsibly, they participated in deceptive campaigns to mislead the public, resulting in climate change-related damages.

The Vermont suit alleges that several oil and gas companies engaged in disinformation campaigns to discredit climate science. As a result, it maintains Vermont consumers were not afforded the chance to make an informed choice about their use of oil and gas. If it weren’t for this disinformation campaigns how many of us would have demanded clean energy and stopped using gas earlier? What options would we have had if we were presented with the truth?

The New York City lawsuit, meanwhile, charges that three companies — BP, ExxonMobil, and Shell — and API violated the city’s consumer protection law. The suit asserts that New York City residents were “systematically and intentionally misled” by the defendants about the role that burning oil and gas plays in driving climate change.

Both lawsuits are seeking civil penalties for alleged corporate misconduct.

EN: What is the status of the lawsuits that were filed in previous years? We all know the saying, “The wheels of justice turn slowly.” Has there been any movement?

DM: Sadly, there has been very little meaningful movement over the last year for US-based lawsuits, thanks to the fossil fuel defendants’ delay tactics. The last thing they want is for these cases to be heard on their merits in a courtroom, so they are pulling out all the procedural stops. That’s one of the main reasons there is not much progress to report. Once these cases get over these procedural hurdles, I do expect many of the cases to start to move forward through the court system at the same time, giving people and communities across the country an opportunity to seek justice and remedies.

EN: Last time we talked, you told us a bit about climate lawsuits that have been filed outside of the United States. Have there been any notable new cases filed over the last year? Has there been any resolution of cases that were filed before 2021?

Yes! Climate litigation is expanding rapidly around the world. There’s a lawsuit in Brazil brought by young people arguing for a right to life, one in Switzerland filed by women over the age of 75 who are concerned about disproportionate climate impacts on their health, and another one in Peru brought by a farmer who is suing a German company for its role in climate change-induced flooding in his village, just to name a few. The impacts of climate change are diverse and widespread, as is the growing body of litigation seeking justice.

And there have been some really important court victories since we last talked. The most recent one, which I’ll highlight here, was a lawsuit against Royal Dutch Shell in the Netherlands. There were two critical outcomes from this case.

First, many oil and gas companies have been arguing that they cannot be held responsible for global warming emissions that come from their customers burning their products and they have tried relentlessly to keep the conversation focused on the relatively small percentage of emissions that come from its production process. These companies are essentially arguing that they had no idea people would use the gasoline they produce, market and sell, which is akin to tobacco companies claiming that they didn’t know their customers would smoke the cigarettes they produce, market and sell. A Dutch court didn’t buy this argument. In its ruling, the court stated that Shell is responsible for emissions from the use of its products. This is a wonky, but incredibly important, finding. Now, when courts consider emissions from a fossil fuel company, they should look to the Dutch court ruling and include all emissions.

Second, the court essentially ruled that Shell must comply with the Paris climate accord. This is the first time a company has been ordered to comply with the agreement’s goal of limiting global temperature increases to 1.5 degrees Celsius above pre-industrial levels. As a result, the court ordered the company to cut its emissions — including from the use of its products — 45 percent below its 2019 emissions by 2030.

This ruling was decisive and timely, and it gives me hope that we can actually reduce emissions and prevent the worse impacts of climate change.

EN: Finally, please tell us about the workshop you moderated in Glasgow. What was on the agenda, who was on the panel, and what came out of it?

DM: Decisionmakers have long had the opportunity to address climate change by taking meaningful policy actions, but they’ve failed. Litigation is one tool that communities are now using to try push the levers of power and help ensure that we can meet standards set by the Paris agreement and limit the worst impacts of climate change.

During my 10 days at COP, I met with dozens of brilliant public officials, lawyers, community activists, and scientists from around the globe who are trying to strategically address climate change through the law.

I was fortunate to lead a discussion with colleagues working for climate justice. We focused our conversation on the underlying role of science and ethics in government and corporate climate accountability law. We also discussed the growing number of climate lawsuits across Latin America, which are very different than those that have been filed in the United States. Instead of local and state governments suing fossil fuel companies, most of this litigation centers on national governments’ failure to protect human rights by allowing the injustice of climate change.

Further, we all recognized that it will be increasing important to grapple with what overall emissions will look internationally in the near future. To dig into this, we spoke with a key scientist who is exploring new frameworks for fair shares of emission reductions.

Regardless of the outcome of the COP negotiations, I returned home from Glasgow knowing that cities, counties, states and provinces around the world will continue to seek climate justice and force fossil fuel companies to answer for their harmful and deceptive practices in court.