As investigations continue into whether ExxonMobil misled investors by failing to report its own scientists’ predictions about global warming, the company and other fossil fuel titans are being challenged on another legal front.
Marin and San Mateo counties, along with the City of Imperial Beach in California, are taking 37 companies and trade groups to court. They claim the defendants knew about the threats posed by burning fossil fuels years ago, and now, as adaptation costs loom, these communities want the companies to pay damages.
“The basic claim here is that, as sea levels rise, coastal property is lost; homes are at increased risk of severe storms and flooding from extreme precipitation events; and that critical infrastructure has already been impacted and is at risk of increased impacts,” explains Columbia law professor Michael Burger. “We're talking about roads, bridges, hospitals and all kinds of infrastructure that make up the communities within these counties and cities.”
“The plaintiffs seek to have the companies pay for a number of different types of costs, including the costs of adaptation to climate impacts from sea level rise, as well as costs associated even with studying the issue, planning to address the issue, development of adaptation plans and implementation of those plans,” Burger says.
At the heart of these claims is something called the public nuisance doctrine.
“The idea of the public nuisance doctrine is that certain resources and rights to health and well-being are held in common by the public, and that private actors can infringe upon those rights and create a nuisance that is not just a nuisance to you or me as a homeowner or a property owner or a person with our own bodies, but, in fact, causes harms to goods that are possessed by all of the members of the state.”
This is not the first time that common law claims have been brought around climate change, Burger points out, although the latest suits have a couple of new wrinkles.
In 2005, a number of states and cities, as well as some environmental organizations and land trusts, claimed the five largest power companies in the United States should be held liable for the public nuisance of climate change, Burger explains. That case, which was known as "Connecticut v. American Electric Power," eventually made its way to the Supreme Court. The Court ruled that the common law claims were preempted by the Clean Air Act. Since Congress had acted on the issue already, through legislation, there was no further room for the courts to act.
But, importantly, Burger says, that was a federal common law claim of public nuisance. The current lawsuits allege state common law claims. So far, no court has really addressed the issue of whether state common law claims can survive.
Like the tobacco litigation of the 1990s, the climate change lawsuits “rely on a long history of corporate knowledge and obfuscation to make their claims,” Burger says. “What these counties and cities are saying is that the fossil fuel industry knew that [their actions] were going to cause climate change,” he explains. “They hid that fact as much as they could. They lied about it. They paid others to lie about it, and they've been holding on as long as they can to their existing business models, and as a consequence they should pay for the damages.”
These cases might be dismissed immediately for any number of reasons, Burger notes. The courts could rule that that climate change is a political question that ought to be resolved by Congress and the Executive Branch. They might say that it's impossible, ultimately, to prove causation; they also might say that federal laws preempt state laws.
“These companies were extracting fossil fuels under license from the federal government when they were doing it within the United States, and in most, if not all, circumstances, with permits and licenses from foreign governments, when they were doing it abroad. So, it is certainly [possible] that these cases will disappear fairly quickly,” Burger says.
That said, Burger adds, “we’re in a much different place than we were five years ago. The knowledge about how long these companies have known about climate change, what they did to obscure the public debate about climate change, is much more well-grounded than it was even back then.”
“These lawsuits are a type of lawsuit that those of us in the field have been waiting a long time for,” he notes. “We've been wondering when these public nuisance state common law claims would be brought — and here they are.”
From Living on Earth ©2017 World Media Foundation