Columbia Law School - Michael Burger
Yesterday, three local governments in California (
San Mateo County,
Marin County and the
City of Imperial Beach)
filed potentially groundbreaking climate change lawsuits in California
state courts, each one charging a group of 20 fossil fuel companies with
liability for public nuisance, failure to warn, design defect, private
nuisance, negligence, and trespass.
This type of state common law climate litigation has been a long time
coming, and these cases may well represent the first of a slew of
similar cases nationwide. Here, I summarize several interesting aspects
of the complaints, and offer some first blush thoughts on both the legal
hurdles they might face and the potential outcomes they might produce.
The Lawsuits
Each of the complaints presents the same simple, compelling storyline: These fossil fuel companies
knew.
They knew that climate change was happening, that fossil fuel
production and use was causing it, and that continued fossil fuel
production and use would only make it worse. They knew this, but they
hid it. And then they lied about it, and paid other people to lie about
it for them. All the while they profited from it, and plotted to profit
more.
Ultimately, their actions caused sea levels to rise, and thereby
caused harm, are continuing to cause harm, and are contributing to
future harm to the plaintiff governments and their residents.
Accordingly, the complaints claim that the defendant companies should be
held liable and forced to pay, both for the costs the local governments
are incurring to adapt to sea level rise and for the companies' own
willful, deceptive, and malicious behavior.
The named defendants include Chevron, ExxonMobil, BP, Shell, Citgo,
ConocoPhillips, Phillips 66, Peabody Energy, Total, Eni, Arch Coal, Rio
Tinto, Statoil, Anadarko, Occidental, Repsol, Marathon, Hess, Devon,
Encana, Apache, and unspecified "Company Does."
According to the
plaintiffs, these companies are responsible for about 20% of global
greenhouse gas (GHG) emissions that were emitted during the period from
1965 to 2015, an amount which the complaints argue is a "substantial
portion" of the climate change problem. The "substantial portion" claim
is legally significant.
To show that the defendants are liable, the plaintiffs must
demonstrate that they caused the alleged harms. Climate change, of
course, is caused by many different actors; sea level rise and resulting
impacts are attributable to climate change and, in some instances,
other factors.
Thus, it may be argued that the defendants are not the
only parties who can or should bear responsibility, or blame. However,
as a matter of law, causation can be shown by proving that the
defendants are a "substantial factor," or that they contributed
significantly to the harm. Relying on a cumulative carbon analysis,
plaintiffs make a strong case that that standard is met.
The timeframe plaintiffs employ for the cumulative carbon analysis is
an important one, for both its legal and narrative impact. In rough
terms, it corresponds with what Will Steffen calls the "
Great Acceleration,"
the years since the 1960s in which approximately 75% of all historic
industrial emissions have occurred, and in which the rate of fossil fuel
production and consumption has significantly increased.
The specific
years also mark notable bookends in climate change history. In 1965
President Lyndon B. Johnson's Scientific Advisory Committee Panel on
Environmental Pollution
reported
that unabated CO2 emissions would, by 2000, alter the climate, and
Johnson charged Congress to address the problem. In 2015 the
Intergovernmental Panel on Climate Change had just issued its
Fifth Assessment Report, relaying the state of the art in climate science and understanding, and the global community signed the
Paris Agreement to the United Nations Framework Convention on Climate Change.
The plaintiffs recite an increasingly well-documented, and familiar,
timeline regarding what the fossil fuel companies knew and understood
about climate change, and what they said and did (or did not do) about
it. Several aspects of the story jumped out to me:
- In 1980, Imperial Oil (a Canadian company in which Exxon owns a
super-majority stake), reported to Exxon and Esso that power plant
carbon capture technology was technologically feasible, but that it
would "double the cost of power generation." (Carbon capture is not yet
deployed at scale in the power sector.)
- Some fossil fuel exploration and production companies started
climate proofing their own infrastructure around 20 years ago. They
started investing in Arctic development capacity even further back,
likely in anticipation of new exploration and production opportunities
in a melting region.
- In 1988, industry fundamentally shifted its stance towards climate
change, turning away from independent research and outward statements
favoring action, and turning towards the strategies and tactics
documented in Erik Conway and Naomi Oreskes' Merchants of Doubt, further revealed through reporting by the Energy and Environmental Reporting Project at Columbia University, and the ongoing subject of investigations
by New York State Attorney General Eric Schneiderman and others.
That
year, according to the complaint, the political will to take on the
climate change challenge was becoming increasingly evident. The
insinuation one draws is that once industry sensed the real possibility
of a commitment to international cooperation and domestic regulation it
began to mount its overt and covert defenses.
- Current EPA Administrator Scott Pruitt was an active participant in
fossil fuel companies' coordinated effort to resist climate change
regulations.
According to the plaintiffs, the consequence of the cumulative
emissions put into the market by defendants, and of the disinformation
campaign waged by certain industry leaders and the think tanks,
communications shops, and lobbying operations they funded and hired, are
rising sea levels that have already impacted local governments and
residents, and that will continue to do so, in ever more extreme ways,
in the years to come.
These impacts include inundation of public beaches
and coastal property, and more frequent and extreme flooding and storm
surge, resulting in some permanent property losses and requiring
expenditure of funds for impact assessment, as well as adaptation and
emergency response planning and implementation.
And so they have sued, seeking damages, both compensatory and
punitive, under a range of common law theories that place blame on and
assign responsibility to these defendants because of their knowledge,
their resistance to mitigation, and their various roles in fossil fuel
exploration, production, marketing, and consumption.
The Legal Obstacles
Scholars and practitioners have theorized this type of climate action
for years. For example, in 2011, my colleague Michael Gerrard wrote
this
piece, surveying a host of issues such cases will inevitably encounter, and Doug Kysar of Yale early on wrote this
piece
on how climate change may itself influence the future shape of tort
law. Tracy Hester at the University of Houston has written this
analysis
of the different elements of state common law climate cases. Thinking
on this goes further back, to the state common law public nuisance
claims included – but never decided – in
Connecticut v. American Electric Power.
Importantly, these cases have been filed at a particular moment in
time, when scientific consensus on and understanding of climate change
is at an all-time high but the federal government's commitment to
addressing the problem is at an all-time low. In fact, it's in negative
territory, with a president, an EPA administrator and an Interior
secretary determined to ramp up fossil fuel production and consumption
while doing nothing to mitigate emissions or adapt to impacts. And the
fossil fuel industry's active role in fighting against climate action
continues to come to light, making comparisons to the tobacco litigation
(like
this one) increasingly accurate.
Without detracting from the many other legal issues likely to arise
in the lawsuits, here are three that come immediately to mind.
Standing: The first issue that tends to come up in thinking
about climate change litigation is standing. Standing is a threshold
issue in any challenge to government action, or inaction, in the climate
change arena. But these are common law tort claims. The elements of
standing – injury, causation, redressability – constitute the merits of
the case. Were plaintiffs harmed in a tortious manner? Did defendants
cause that harm? Are plaintiffs entitled to damages? That's the whole
case, not a preliminary matter to determine jurisdiction.
Accordingly,
it seems that a standing challenge should not, in theory, succeed; at
least, not before the merits of the case are determined. Nonetheless,
standing was an issue in
Connecticut v. AEP, where the Supreme
Court was asked to rule on whether a federal common law public nuisance
claim could proceed. In her opinion finding the federal nuisance claim
displaced by the federal Clean Air Act, Justice Ginsburg noted that
"[f]our members of the Court would hold that at least some plaintiffs
have Article III standing." Justice Sotomayor did not participate in
that decision, meaning that Justice Kennedy voted to uphold his own
opinion from
Massachusetts v. EPA, which found states had
standing to sue due to injuries they suffered from climate change.
Thus,
at the moment, there are likely at least five votes for the broad
proposition that states have standing to sue for climate change. The
opinion in
Mass. v. EPA, however, relied on the "special
solicitude" owed states due to their quasi-sovereign status. Here,
plaintiffs are local governments, which may or may not be given a
similar weighting by Justice Kennedy and others.
Political Question: In
Connecticut v. AEP, the federal district court originally
found
that there were no judicially manageable standards by which to
adjudicate a public nuisance claim brought by states, cities, national
environmental organizations, and three private land trusts against five
power companies, and that the cases raised a political question
necessarily left for the political branches. The Second Circuit
reversed
this judgment, finding that courts have long adjudicated complex
environmental nuisance cases, and that the political question doctrine
did not pose a bar.
The Supreme Court's
view
of the matter is a little obscure. Justice Ginsburg noted that "at
least four judges" found that neither standing nor any other "threshold
obstacle bars review."
The infamous footnote 6 in that opinion refers to
the political question doctrine, but neither it nor the text offers an
explanation of exactly how the justices voted on the matter. All of
which leaves the political question issue unresolved.
The 9
th Circuit, in
Native Village of Kivalina v. ExxonMobil Corp.,
another federal common law nuisance case, did not directly address the
political question doctrine, relying instead on the displacement
analysis from
Connecticut v. AEP. In
Comer v. Murphy Oil,
a Fifth Circuit panel found that the political question doctrine did
not bar state tort claims brought against several companies for their
contributions to climate change. However, that decision was later
vacated in a uniquely bizarre procedural sequence.
The facts of this case, however, are different. Plaintiffs have
framed their case not about climate change policy in the abstract, and
not only about a specific quantity of emissions contributing to climate
change, but also about these private actors' individual and collective
conduct, which includes not only producing GHG emissions but interacting
with the market and with regulators in a sustained disinformation
campaign. Plaintiffs are not seeking to establish a specific policy in
regards to GHG emissions, public lands management, or other matters of
federal agency discretion. Rather, they are seeking damages for harms
caused by market behavior they claim was, among other things, knowing,
negligent, and intentionally misleading.
Preemption: In
Connecticut v. AEP, the Supreme
Court found that a public nuisance case brought in federal court under
federal common law had been displaced by the Clean Air Act. Because the
Court had previously held in
Mass v. EPA
that EPA was authorized to regulate GHGs by the federal legislation,
there was no longer room for federal common law. However, the court did
not reach the state common law claims also plead in that case.
It
remains an open question whether state claims such as those plead here
are preempted by federal legislation, including the Clean Air Act, the
Mineral Leasing Act, the Outer Continental Shelf Lands Act, and other
statutes setting federal GHG emissions and fossil fuel extraction,
transportation, and consumption policy. In
Comer, the original
Fifth Circuit panel concluded that federal preemption was inapplicable
to plaintiffs state common law claims; but, as noted, that decision was
vacated and has no precedential value. Its reasoning, of course,
nonetheless bears consideration.
One preemption case that defendants may seek to invoke is the Fourth Circuit decision in
North Carolina v. Tennessee Valley Authority
(TVA). There, the U.S. Court of Appeals for the Fourth Circuit
dismissed a common law nuisance action brought by the state of North
Carolina against TVA. The action focused on emissions from TVA-operated
power plants in Alabama and Tennessee, which were alleged to cause air
pollution and associated health problems in North Carolina.
Even if this
were the case, however, TVA would not be liable for public nuisance
according to the Fourth Circuit. In reaching this decision, the Fourth
Circuit noted that "[c]ourts have traditionally been reluctant to enjoin
as a public nuisance activities which have been considered and
specifically authorized by the government," such as under the Clean Air
Act.
The Fourth Circuit reasoned that "TVA's plants cannot logically be
public nuisances where TVA is in compliance" with the Clean Air Act, and
its plants have been permitted by the states in which they operate.
Defendants will likely cite to this case to argue that federally
permitted activities cannot be the subject of nuisance suits.
Assuming
arguendo that North Carolina v. TVA was rightly
decided (and there are arguments to be made that it was not), there is
at least one key distinction between it and these newly filed cases –
the facilities in that case were specifically permitted to pollute under
the standards set through the Clean Air Act, and the permits in
question authorized the pollution in question.
Here, by contrast, none
of the federal programs through which defendants have operated, and none
of the foreign governments that have permitted them to operate in other
jurisdictions, have thoroughly considered, far less sought to regulate,
the downstream GHG emissions associated with their activities.
What's
more, given the Trump Administration's outright resistance to using the
federal statutes to regulate GHGs at any stage there can be no conflict
between state law and federal law, and state law cannot be said to be an
obstacle to achieving any particular federal goals. Defendants might
argue that state common law liability would conflict with the Trump
Administration's decision to not protect public health and welfare, or
to pursue "energy dominance," or some other such thing, but we have to
hope that that line of reasoning will not find sympathetic audiences in
court.
Possible Outcomes
As with the case of
Juliana v. United States,
currently winding its way towards a trial date next year, these cases
face significant legal hurdles. Success on the merits is far from
assured. But it could happen. The facts are there, making the case for
causation and culpability, and the law can accommodate these claims.
What's more, if other cases in other jurisdictions are brought, we may
ultimately see a large-scale settlement similar to the Tobacco Master
Settlement Agreement, or perhaps establishment of a fund through federal
legislation, along the lines of the Superfund program established under
CERCLA.
However, and again as with
Juliana, there are also potential
outcomes short of success on the merits that could still advance the
ball on climate change. For one thing, these cases represent a new
pressure point on the fossil fuel industry, and a new spotlight on that
industry's engagement with climate law and policy.
They make the case
that these companies are bad actors, who have lied for years to continue
to generate profits at the expense of the local governments and
individual citizens and residents who bear the costs of climate impacts.
The drama of the courtroom setting could mobilize the public's interest
and give life to local activism on these issues, much as
Juliana has
captured the youth climate movement and given it voice.
Moreover, the
prospect of judicial judgment affirming plaintiffs' case might nudge
these companies to accelerate their own transition away from past
practices, towards new approaches to providing energy to consumers.
Legal
