Lethal Heating: 07/28/17

28/07/2017

Exxon, Shell And Other Carbon Producers Sued For Sea Level Rises In California

The Guardian - Laura Paddison

As a trio of lawsuits claim compensation for sea rises resulting from fossil fuel emissions, campaigners say carbon majors must change their business models

Houses hanging over a cliff in Pacifica, San Mateo County, California. Storms and powerful waves have been intensifying erosion in the area. Photograph: Josh Edelson/AFP/Getty Images

Three Californian communities have launched legal action against some of the world’s biggest oil, gas and coal companies, seeking compensation for the current and future costs of adapting to sea level rises linked to climate change.
San Mateo and Marin Counties, coastal communities in northern California, and Imperial Beach, a city in San Diego County, have filed complaints against 37 “carbon majors”, including Shell, Chevron, Statoil, Exxon and Total.
They claim greenhouse gas emissions from the fossil fuel companies’ activities over the last 50 years have locked in substantial sea level rises, which will cause billions of dollars’ worth of damage to properties and businesses, as well as endangering lives.

According to the complaint, the defendants “have known for nearly 50 years years that greenhouse gas pollution from their fossil fuel products has a significant impact on the Earth’s climate and sea levels”. Rather than working to reduce impacts, the complaint claims the companies engaged in a “co-ordinated, multi-front effort to conceal and deny their knowledge of these threats”.
A spokeswoman for Shell said “we believe climate change is a complex societal challenge that should be addressed through sound government policy and cultural change to drive low-carbon choices for businesses and consumers, not by the courts.” A spokesman for Statoil said this lawsuit was not the first against the industry and that “previous cases have been dismissed as [providing energy while meeting climate commitments] is a political, not a judicial, issue”.
Exxon and Chevron declined to comment specifically on the litigation. BP and Total did not respond to the Guardian’s request for comment.

Climate change litigation
“This an unprecedented moment for climate change litigation,” says Sophie Marjanac of campaigning lawyers Client Earth, which is monitoring the case.
Coastal California is already experiencing the effects of rising sea levels, says Deborah Halberstadt, executive director of the state’s Ocean Protection Council which recently released a study (pdf) about the threat of rising seas. “The rate of ice loss from the Greenland and Antarctic ice sheets could rapidly accelerate, leading to extreme sea-level rise, [...] with potentially catastrophic impacts for California,” she says.
Serge Dedina, the mayor of Imperial Beach, a low income coastal community in San Diego County, says that up to 30% of the city could be affected by climate change. “As the lowest-income, highest poverty-rate city in San Diego County, we have no capacity to pay for the extensive adaptation measures.”
It’s a similar story for Marin County. Within 15 years, says county supervisor Kate Sears, flooding could affect tens of thousands of residents and cause upwards of $15.5bn (£11.9bn) in property damage. “This lawsuit is intended to shift those costs back where they belong – on the fossil fuel companies,” she says.
“We are at the point of no return in fighting climate change,” says San Mateo supervisor Dave Pine, “and if we don’t reduce emissions there will be catastrophic impacts.” Potential property damage in the county is estimated to be in the region of $39bn, with sea level rises set to affect more than 100,000 residents (pdf).
This isn’t the first time fossil fuel companies have found themselves facing legal action over climate change. Kivalina – an Alaskan barrier island community of fewer than 400 people – filed a lawsuit in 2008 against oil companies including BP and Chevron demanding up to $400m for relocating their village in the face of rising sea levels. They were ultimately unsuccessful, with their case dismissed on the basis that it was a political question, not one for the courts.

The island village of Kivalina. Photograph: Jonathan Ernst / Reuters/Reuters

“This claim has a better chance,” says Marjanac, “we have better climate science now.” She also believes the “vacuum in the US at a federal level” when it comes to climate change, may make the state court more willing to step in.
She does, however, acknowledge there are significant hurdles to success. These include the “utility argument”: that companies are providing energy to the world, something that is demanded and sanctioned.

Pressure heating up on carbon majors
While all parties acknowledge the claim is likely to be prolonged, awareness raising is an important element. “This kind of litigation is a vital tool in the spreading effort to force oil companies to change their business models,” says Jeremy Leggett, founder of solar energy company Solarcentury.
Exxon, Total, Shell and Statoil are among those already making some shifts away from fossil fuels.
Shell’s CEO, Ben van Beurden, announced earlier this month that the company would invest up to $1bn per year in its New Energies division to explore alternative energy. But the energy transition will be “change that will take place over generations”, he said, not a revolution.
Exxon told the Guardian “oil and natural gas will remain prominent in meeting global energy”, but a spokesman said the firm is working on alternatives and “invests about $1bn a year to support a broad portfolio of R&D projects ranging from advanced biofuels to carbon capture.”
Total has made significant investments including the purchase last year of battery company Saft for $1bn. And Statoil has established Statoil Energy Ventures with $200m in investment capital for four to seven years.
However, many campaigners and analysts remain sceptical. “These investments amount to lip service,” says Kelly Mitchell, climate and energy director for Greenpeace USA, “while [fossil fuel companies] dump resources into more fossil fuel projects around the world, lobby politicians and lock us into decades of fossil-fuel infrastructure.”
Leggett sees varying levels of seriousness among the big players. “No company has admitted the game is up yet. Some have taken out substantial hedged bets in the form of significant investments in clean energy, notably Total and Statoil. Others have dug in, seemingly for a fight to the death,” he says.
“The bottom line,” says Mitchell, “is that these companies are clinging to an outdated business model that is not compatible with a safe climate and liveable communities.”

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This Could Be The Next Big Strategy For Suing Over Climate Change

Washington Post - Chris Mooney | Brady Dennis

A Delta plane lands as a U.S. Airways plane waits to take off at San Francisco airport. (Reuters/Lucy Nicholson)

Two California coastal counties and one beach-side city touched off a possible new legal front in the climate change battle this week, suing dozens of major oil, coal, and other fossil fuel companies for the damages they say they will incur due to rising seas.
The three cases, which target firms such as Chevron, ExxonMobil, BP and Royal Dutch Shell, assert that the fossil fuel producers are collectively responsible for about 20 percent of global carbon dioxide emissions between 1965 and 2015. They claim that industry “knew or should have known” decades ago about the threat of climate change, and want companies to pay the costs of communities forced to adapt to rising seas.
“We’re already living the impact of sea level rise,” said Marin County Supervisor Kate Sears. She said a county vulnerability study found hundreds of county businesses and other assets could be at risk in coming years.
“This lawsuit is a natural next step in how we address the expense we’ve already had in planning for and trying to remediate the impacts of sea level rise, but also in addressing the impacts we expect in the future.”
The suits represent a variation on several largely unsuccessful attempts to hold individual companies responsible for their contribution to climate change.
In 2009, the vulnerable Alaskan coastal village of Kivalina used similar logic to sue a string of fossil fuel companies. The case failed when an appellate court ruled that federal action by the Environmental Protection Agency “displaces” their claim.
An even bigger setback came in 2011 when the Supreme Court decided against a public nuisance suit brought by eight states and New York City against a group of electric utilities — ruling, once again, that since EPA had begun to take action on climate change, the claim had been displaced.
The California cases are also proceeding under a legal doctrine called “public nuisance” (among other claims), which charges that under California common law, the companies have injured the counties and city by contributing to rising seas, and more frequent and severe flooding as a result.
But the difference is that this time, they are making state level nuisance claims rather than federal ones, which have already failed as courts pointed out that those worried about climate change had other recourses, such as EPA action.
The lawsuits were filed in California courts by Marin and San Mateo counties and the City of Imperial Beach, which sits south of San Diego near the Mexico border. Each cites specific damages expected from rising seas.
San Mateo cited worries about the flooding of the San Francisco Airport, along with up to $24 billion in assets being put at risk.
Marin County estimated nearly $16 billion of homes and businesses were threatened, and that with 6.7 feet of sea level rise, 7 percent of coastal roads would be “exposed to higher average sea level and storm threats at several locations.”
Imperial Beach cited the potential for “over $106 million” in property damages because of coastal erosion and argued the town has few resources to adapt to rising seas.
Vic Sher, a partner at the firm of Sher Edling who is helping lead the legal challenge, said the goal behind the lawsuits is to shift the “very real and very large costs of dealing with sea level rise” from ordinary citizens to the companies responsible for knowingly contributing to global warming.
He likened the cases to past litigation that sought to hold tobacco companies accountable for the public health toll of smoking, as well as efforts to force lead paint manufacturers to renovate homes where health risks remain.
“This is a very straightforward case for damages for wrongful conduct,” Sher said. “You have communities that are already injured, that have already spent a lot of money and are going to have to spent a lot more money in the future.”
Royal Dutch Shell declined to comment Wednesday, and ExxonMobil did not respond to a request for comment. The American Petroleum Institute, a trade group for oil and gas companies, also declined to comment on the pending litigation.
David Bookbinder, chief counsel with the Niskanen Center, a libertarian think tank, expects more such suits to be brought in different localities around the country.
“The California Supreme Court is going to view disappearance of its coastline quite differently than the Supreme Court might view it,” Bookbinder said.
A strength of the lawsuit, note some legal observers, lies in the fact that sea level rise is easily measurable, constant (unlike climate-affected weather events), and very strongly linked to a warming planet. Moreover, analyses have become more and more precise when it comes to mapping which locations will be inundated, or subjected to greater flooding risks, for a given level of rising seas.
Bookbinder said there could be a time when the science is powerful enough to try to assess blame for other climate related changes, such as droughts, but that sea level rise is a stronger and simpler case right now.
“What’s different about these lawsuits is the way in which they rely on the current state of climate science and the current state of information about what these companies knew, when they knew it and what they did with their knowledge,” added Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. “Over the last several years, a lot of information has come to light … What we know now is fundamentally different from what we knew years ago.”
But there are clear legal hurdles, too. The companies will surely point out that each individual corporation contributed only a small fraction to climate change, or resulting sea level rise. In addition, the companies themselves did not directly emit carbon into the atmosphere, but rather sold gasoline and other products that consumers used to power their cars and homes.
“The litigants misunderstand nuisance law,” said Scott Segal, an attorney with Bracewell LLP who represents energy companies in D.C. “Commentators have suggested that nuisance law, a relative backwater in property law, is based upon conditions in which there are distinct producers and recipients of pollution. However, in the case of global climate change, a molecule of carbon is literally around the world in seven days. The requisite causation needed for nuisance suits is missing and unprovable.”
“It’s possible the suits will go nowhere, that they will be one offs that end in dismissal,” added Burger. After all, he said, there have been a number of previous lawsuits filed against the fossil fuel industry, raising public nuisance and other common law claims, and none have been entirely successful.
“But I think the potential here is that it becomes a first-of-its-kind set of lawsuits,” he said, agreeing with Bookbinder that other local governments are likely to pursue similar claims. “And you wind up with a groundswell of litigation that puts real pressure on the fossil fuel industry and on the government.”
Still, he added, “These are not easy cases to win. The plaintiffs will certainly have their work cut out for them convincing a judge, or perhaps a jury, that these particular companies bear enough of a burden of blame that they should be held responsible in a court of law.”

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These 21 Kids Taking On Trump Could Be Our Best Hope For Climate Action

Climate Desk - Eric Holthaus

The best shot at large-scale climate action under the Trump administration might lie with a lawsuit set to go to trial early next year.

The plaintiffs pose with climatologist James Hansen (top, third from left) and two attorneys. Clayton Aldern/Grist

Juliana v. United States has a plot suitable for a Disney movie: An eclectic group of 21 kids (and their lawyers) fighting to save the world by forcing the federal government to adopt a science-based plan to reduce emissions. Their lawsuit got a boost this past week when climate scientist James Hansen published a paper in support of their cause.
The time may be right for Juliana and other lawsuits like it to gather real momentum, paving the way for meaningful victories, says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. He says that a "groundswell of litigation" could put "real pressure" on industries and governments to pay for local adaptation projects and make firm commitments to reduce emissions, all within Trump's first term.
Legal experts say Juliana has helped open a new front in the battle against climate change in the United States and around the world. It's the culmination of years of legal strategizing by Our Children's Trust, the advocacy group that helped organize the effort. Our Children's Trust has brought related suits in all 50 states, as part of a buckshot strategy to get one of them to break through.
"This case is especially crucial in the fight against climate disruption," says Kassie Siegel, director of the Center for Biological Diversity's Climate Law Institute. Cases like Juliana, she says, empower young people to advocate for their rights, and that "drives social change."
The buzz about Juliana comes amid a flurry of legal challenges to the Trump administration's efforts to dismantle environmental rules. Just this week, a series of lawsuits were filed in California as a direct challenge to the oil industry on climate change grounds, using a legal theory similar to the landmark tobacco industry lawsuits of the 1990s. The administration's quest to roll back or reverse pending Obama-era EPA regulations is also getting blocked in the courts.
When it comes to climate change, "so far, the Trump administration is losing more frequently than it's winning," says Burger.
At the heart of this suit is the principle of intergenerational equity. In essence, the 21 plaintiffs in Juliana say that the federal government's refusal to take serious action against climate change unlawfully puts the well-being of current generations ahead of future generations.
This argument might have helped spur legal action abroad, too. Since Juliana was filed in 2015, similar lawsuits have been brought by youth in Pakistan, New Zealand, and India, Burger says.
"Worldwide, there is a great deal of interest in the Juliana case not just because of the practical outcome that it might or might not achieve, but because of what it represents," he says. "Deeply held values about environmental protection, about intergenerational equity, about the need to address climate change — these things can be linked to specific legal rights embodied in constitutions or in common law."
So far, the courts agree. In November, they scored their first major victory, when a federal district court allowed the suit to go to trial. Judge Ann Aiken set a judicial precedent in her decision, ruling that climate change may pose an unconstitutional burden on younger generations. "I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society," she wrote.
Late last month, a trial date for the Juliana case was scheduled for next February in Eugene, Oregon. It's sure to set a dramatic spectacle of the kids and their lawyers on one side of the room against representatives of the Trump administration on the other, with the future of the climate on the line.
In his paper published on Wednesday, Hansen — whose granddaughter Sophie Kivlehan is a plaintiff in the case — presented an updated scientific basis for the suit's claims. The new study, which has 14 coauthors from around the world, concludes that the burden climate change has placed on younger generations is now so huge that continuing on a high-emissions scenario would cost a minimum of $89 trillion (and as much as $535 trillion) to clean up by the end of this century. And that cleanup job would rely mainly on the still-unproven technology of negative emissions — literally sucking carbon dioxide out of the atmosphere.
Such a burden "unarguably sentences young people to either a massive, implausible cleanup or growing deleterious climate impacts or both," the paper argues. The best alternative, Hansen says, is a court-ordered mandate to reduce emissions now.
After decades working as a NASA climate scientist and at times being politically pressured into silence, Hansen quit his post in 2013 in part to help build the scientific evidence backing the Juliana case. "It's hard to solve this politically," he said on a conference call with the media this week. "That's why we need to take advantage of the fact that the judiciary is less subject to that pressure."
To be sure, the ultimate success of Juliana hinges on the composition of the Supreme Court, if the case makes it that far. That fact makes Burger and his colleague, Michael Gerrard, less optimistic. "I can't foresee a scenario where there are five votes to uphold such a ruling," says Gerrard. Burger called success in a Supreme Court during Trump's first term "a near impossibility."
But victory in the Supreme Court isn't the only objective for the kids and their lawyers. This is a trailblazing case, designed to pave the way for future success of other cases, too.
"This is strategic impact litigation," says Burger. "As you can see from the global interest, it's already had a real impact. It's starting to shape the conversation about climate change."

This story was originally published by Grist.

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