The Verge - Josh Dzieza
Illustrations Garret Beard | Alex Castro
Scientists can now link disasters to climate change, opening the door to lawsuits against fossil fuel companies
Last
summer, Ryan Coonerty, a county supervisor in Santa Cruz, got word that
the neighboring county of San Mateo was about to take a bold step in
adapting to climate change. Rising seas are already
eroding San Mateo’s coast,
and the county will need to spend billions of dollars on new sea walls
and other infrastructure to protect itself in the years to come. So in
July, San Mateo, along with Marin County and the city of Imperial Beach,
sued 37 fossil fuel companies, arguing that they should help pay for
the damage their products cause.
Santa Cruz had also been feeling the effects of climate
change. Waves were taking chunks out of coastal roads, Coonerty says,
destroying utility pipes beneath them. The sea wasn’t the only problem:
there was a years-long drought, followed by historic wildfires, followed
by unusually intense winter storms, which triggered landslides causing
$140 million in road damage and cutting off entire neighborhoods. “We’ve
never had storm damage like that before,” Coonerty says. “At the end of
the day, this is going to be billions of dollars in damage to public
infrastructure. And the question is, are the oil companies going to
stick the public with the bill after they’ve reaped untold profits and
lied to us?”
In December, Santa Cruz filed a suit of its own. Nine
cities and counties have now brought similar lawsuits, including San
Francisco, Oakland, and New York. In recent weeks, officials in Los
Angeles and Florida have discussed joining the fray.
“Are the oil companies going to stick the public with the bill?”
There are several reasons why this wave of litigation is
happening now. Frustration with the Trump administration’s opposition to
climate action has led
states and cities
to take matters into their own hands. Recent floods, storms, and fires
have also created a sense of urgency. Because of climate change, such
events will only get more severe, and if cities are going to be
prepared, they need to begin the expensive process of adapting their
infrastructure now.
These lawsuits are also a sign that the science
connecting climate change to damaging events has greatly improved. Santa
Cruz, for instance, is suing not just for sea level rise, but for
drought, wildfires, and other disasters, armed with recent research
showing that climate change is already making them worse.
Not long ago, the phrase “no single event can be
attributed to climate change” was repeated like a catechism. This is no
longer true. Though scientists still warn that it’s inaccurate to speak
of weather events being “caused” by climate change — weather always has
multiple causes — better climate models, more powerful computers, and
refined methodologies now allow researchers to quantify how climate
change has increased the likelihood or severity of heat waves, droughts,
deluges, and other extreme events.
The American Meteorological Society now publishes an
annual compendium
of studies examining the role of climate change in the previous year’s
weather. This January’s issue marked an ominous milestone. For the first
time, researchers found phenomena that couldn’t have happened in a
world without industrial greenhouse gases. The record global heat of
2016, a strangely warm patch of water off Alaska known as “the blob,”
and deadly heat waves in Asia weren’t just more likely because of
climate change — they were only possible because of it.
"For the first time, researchers found phenomena that couldn’t have happened in a world without industrial greenhouse gases"
Meanwhile, new research is quantifying the amount of
carbon dioxide that energy companies have added to the atmosphere over
the course of their entire existence. Combined with attribution science,
the two fields form a sort of climate forensics, enabling communities
to point to an ostensibly natural disaster, find the fingerprints of
climate change, and trace them back to an Exxon or BP.
If the current volley of lawsuits over adaptation costs
are successful, they will likely be followed by others: Phoenix might
sue over deadly heat, Boulder over its
shrinking ski season,
or Houston over torrential rain. The list of disasters exacerbated by
climate change keeps getting longer. Recent attribution studies have
found that climate change played a major role in everything from
violent avalanches in Tibet to the bleaching of
coral reefs in Australia.
Plaintiffs compare their cases to the pivotal tobacco
litigation of the 1990s, hoping for a similar outcome but foreseeing
similarly daunting obstacles. Like the states that brought the tobacco
lawsuits, they face fantastically well-funded opponents and must
convince courts of the causal link between major companies and
widespread harm. No climate lawsuit has made it to trial in the US
before.
Vic Sher, a partner at the firm
Sher Edling LLP,
which is leading several of the California lawsuits, says that one
reason he believes the cities have a shot now is the science. “All of
these earlier cases didn’t have the benefit of current attribution
science, in terms of drawing the link between emissions and impacts, and
emissions during a particular period, and attribution to particular
corporations,” Sher says. “We have all that information now.”
Scientists have been able to quantify the effect of
greenhouse gases
on global average temperature for decades, but identifying their effect
on specific weather events is far more challenging. Weather varies
drastically by the day, season, and year before you even get to
large-scale shifts like El Niño. It’s one thing to take all that data
and find the trend of rising average temperature, and another to figure
out how late June
heat waves in the Mediterranean have changed and why.
There are two main steps to detecting climate change’s
role in an event. The first is to look at historical data and determine
the likelihood of the event in the current climate, and how that
likelihood has changed over time. If there’s a trend, the next step is
to see whether it’s due to greenhouse gases or one of the countless
other variables that affect weather.
That’s done using computational models that simulate
temperature, sea ice, moisture, and other elements of the climate
system. Typically these models are used to predict how the future
climate will respond to rising greenhouse gases, but attribution
researchers use them to compare the current climate with a hypothetical
one where greenhouse gas emissions never occurred. In a sense, we’re
currently conducting a planet-wide experiment in what happens when you
pump billions of tons of carbon dioxide into the atmosphere, but there’s
no control group — an untouched planet against which we can measure the
effects — so attribution researchers use models to simulate one.
"We’re currently conducting a planet-wide experiment in what happens when you pump billions of tons of carbon dioxide into the atmosphere"
Friederike Otto, a senior researcher at the University of Oxford and a lead scientist on the
World Weather Attribution
project, compares the process to figuring out whether dice are loaded.
You roll a clean die and a loaded one over and over and compare the
results. You won’t be able to point to a particular winning roll and say
it happened because the die was loaded, but you can quantify how much
more likely loading made it.
The first major attribution studies were done on heat waves, like the ones that killed tens of thousands of people in
Europe in 2003 and
Russia in 2010.
The studies captured public attention and scientists began researching
more events and delivering results more quickly. Since 2014, researchers
at the World Weather Attribution project have been publishing
assessments of heat waves, droughts, floods, and other events often
weeks after they occur.
Attribution science is still new and there’s much room for improvement. In a 2016 report, the
National Academies of Sciences
declared that the field had advanced rapidly but needs better models
and common standards for evaluating their quality. Even high-end models
only simulate the climate system at a resolution of 25 square
kilometers. That’s enough to capture large-scale phenomena like heat and
rain, but not enough to handle weather with complex local dynamics,
like thunderstorms or hurricanes.
These limitations will likely be raised by fossil fuel
companies in court, as will general questions about the accuracy of the
models. Models can be tested and fine-tuned by seeing how well they
reproduce the recent past, but there isn’t always good historical data
to test against and, of course, there’s none for the counterfactual, low
greenhouse-gas version of the planet.
But when it comes to large-scale events, attribution
research can be a useful tool for measuring how risk has changed. After
Hurricane Harvey swamped Houston, two independent studies
found that climate change had made the storm’s
Earth-bending rainfall more likely and more intense. The year before, a study
found that climate change
had increased the odds of a catastrophic deluge in Louisiana. These
studies show that torrential rain in the Gulf is no longer a freak
event, and that flood maps need to be redrawn, building codes updated,
and infrastructure made ready.
“Advances in the science of extreme weather event attribution have the potential to change the legal landscape in novel ways.”
The better attribution science gets, the easier it will
be to argue that governments should have foreseen climate risks and
prepared for them — and to hold them liable if they fail to. In the
journal
Nature
this fall, a group of environmental lawyers listed a range of actors,
from local governments to construction companies, that could face
litigation for continuing to operate under a 20th century understanding
of risk. “Advances in the science of extreme weather event attribution
have the potential to change the legal landscape in novel ways,” they
wrote.
The science can also bolster litigation against
greenhouse gas emitters themselves. Robert Glicksman, a professor of
environmental law at the George Washington University Law School, points
out that when states sued tobacco companies, they relied on a form of
causation similar to that provided by attribution studies. They couldn’t
say definitively that a particular cancer was caused by smoking, but
states could say smoking increased the probability of cancer among their
residents, which was translating to higher health care costs that the
tobacco companies were liable for. An analogous case is now being made
by a growing number of cities and counties around the US: climate change
has made certain disasters more likely, and local governments are
bearing the costs.
The native
Alaskan town of Kivalina sits on a narrow barrier island 80 miles above
the Arctic circle. Rising temperatures have melted the sea ice that once
protected it from fierce storms, resulting in rapid erosion, and it’s
been evident for over a decade that the town will have to move. But
relocating a town, even one of just 400 people, is
expensive:
between $100 and $400 million, and it’s unclear where the money will
come from. So in 2008, the town decided to sue fossil fuel companies for
the moving costs.
Kivalina’s case is the one that most closely resembles the current round of lawsuits, and its fate is inauspicious. It was
ultimately dismissed
on the grounds that greenhouse gas emissions are regulated on the
federal level by the Clean Air Act and the Environmental Protection
Agency.
The new lawsuits from Santa Cruz, New York, and elsewhere
may fare better, according to Michael Burger, the executive director of
Columbia University’s Sabin Center for Climate Change Law. They’re
being brought under state law, not federal, which gives them a better
chance of surviving similar motions to dismiss. “I think that this has
been a theory that has been recognized for a while and it’s now having
its moment,” Burger says.
"Relocating a town, even one of just 400 people, is expensive: between $100 and $400 million"
The new lawsuits will benefit from revelations about what
fossil fuel companies knew about climate change and when they knew it.
In the years since Kivalina, reporting by
InsideClimate News and others has shown that
fossil fuel companies,
Exxon in particular, conducted their own research in the 1970s and ‘80s confirming the risks posed by greenhouse gasses. Internally, companies
prepared their own infrastructure
for climate change, raising the decks of drilling platforms and
designing pipelines for predicted rising seas and melting permafrost.
But externally, they denied the risk, marketing and selling fossil fuels
while sowing doubt about climate change through front groups. The suits
compare the disinformation campaign to that waged by tobacco companies,
a comparison made easy by the fact that both industries paid some of
the same people to downplay the danger.
The science connecting climate change to specific impacts
has also improved since Kivalina. “The science that allows us to
attribute climate-related effects to fossil fuel emissions, the body of
science that allows us to tie greenhouse gas emissions to sea level
rise, ocean acidification, changes in the hydrologic cycle, and so forth
— that science is now robust in a way that it wasn’t previously,” says
Sher, the lawyer leading several of the lawsuits.
Santa Cruz’s suit, for instance, cites attribution research on the role climate change played in the recent California
drought and
wildfires as part of its case that greenhouse gas emissions are making these disasters more likely. New York’s suit says the city is
already experiencing
rising temperatures and more extreme precipitation. All the current
lawsuits focus on sea level rise, the impact of climate change that’s
been best understood the longest. But that too has seen improvements in
the ability to link climate change with specific local damage, like
coastal flooding and erosion, key facts to prove in litigation.
“I think that, certainly, we will see attribution science
front and center in all of these cases, whether it’s attribution of
specific levels of sea level rise in specific places or attribution of
extreme events,” says Burger, who is currently
working on a paper on the role of attribution research in litigation.
But convincing courts that climate change is causing
damage is only half the battle; plaintiffs also need to show that
specific companies are responsible for climate change. For that, they
have an expansive accounting project conducted by Richard Heede,
co-founder of the
Climate Accountability Institute.
For years, Heede has compiled corporate records going back over a
century — some found in dusty uncatalogued reports buried in libraries
around the world — and calculated how much coal, oil, and gas the
largest energy companies have extracted and sold over the course of
their existence.
"Two-thirds of the CO2 and methane pumped into the atmosphere since 1751 was sold or emitted by just 90 companies"
Climate change can seem like an abstract problem in which
everyone is complicit, but when it comes to extracting and selling
fossil fuels, Heede’s research shows that that’s far from the case. In a
2014 study published in
Climatic Change
and cited in the lawsuits, he found that two-thirds of the CO2 and
methane pumped into the atmosphere since 1751 could be traced back to
just 90 companies — from investor-owned entities like Chevron and Exxon
to state-owned concerns like Gazprom and Saudi Aramco — through their
own emissions and the burning of the fuel they sold. Half of those
emissions occurred after 1988 — well after companies knew climate change
was a problem. Last year, Heede and other researchers used attribution
science to show that those
90 companies are responsible for about half of the rise in global mean temperatures since 1880.
Heede’s research underpins the sweeping yet specific
claims found in the lawsuits, like New York’s statement that the five
companies it’s suing are responsible for over 11 percent of the
greenhouse gases added to the atmosphere “since the dawn of the
Industrial Revolution.” This research is also coming into play in
the Philippines,
where the country’s Commission on Human Rights is investigating fossil
fuel company responsibility for climate change after Typhoon Haiyan, and
in Germany, where a
Peruvian farmer is suing the energy company RWE for contributing to the melting of a glacier that’s flooding his town.
If the new round of lawsuits go to trial, there will be a
bitter fight over these two links in the causal chain: that these
companies contributed to climate change, and that climate change is
causing these particular harms.
“I think plaintiffs’ attorneys are playing a long game,”
Glicksman says. “I think they realize they may lose some cases
initially, but they’re hoping some trial court judge will endorse the
causal link they’re trying to prove, and the likelihood of that
happening will increase as the science gets more sophisticated.”
It will likely
be years before any of these cases see a courtroom, if they ever do.
First comes a long road full of procedural hurdles. The companies will
likely argue that greenhouse gases are already regulated by federal
statutes, that climate change is a problem for lawmakers not courts, and
various other reasons the cases should be thrown out. As Sher puts it:
“We will see whatever the highest paid lawyers in the world can come up
with.”
Burger envisions the companies making a more general
argument as well: why them? They may have taken the fossil fuels out of
the ground and sold them, but so did many other companies. Furthermore,
the government licensed their actions, utilities burned the fuel, car
companies built cars for it, and individuals around the world used their
products. You can already see this argument in
Chevron’s complaint,
filed in December. In it, Chevron says it only produced the fuel and
isn’t responsible for the effects of burning it, but that if it is found
liable, the Norwegian state oil company Statoil should pay up too.
Plaintiffs face opposition along other fronts as well.
Days after Imperial Beach, Marin, and San Mateo filed their lawsuits,
officials there received public records requests seeking correspondence
between a long list of climate activists, scientists, and lawyers. The
requests came from the Energy & Environment Legal Institute, a 501c3
funded by the fossil fuel industry that has previously
gone to court seeking emails from climate researchers.
The Union of Concerned Scientists has called their campaigns to get correspondence from climate scientists harassment.
Exxon itself has already struck back against the plaintiffs. In a
petition
filed last month in a Texas district court, the company accused the
California communities of “abusive law enforcement tactics” designed to
stifle the company’s “First Amendment right to participate in the
national dialogue about climate change and climate policy.” Seeking
depositions and documents, Exxon also accused the communities of failing
to tell bondholders about the climate risks cited in their lawsuits.
Weeks later, the Competitive Enterprise Institute made a similar
argument in
a letter
urging the Securities and Exchange Commission to investigate the cities
and counties for misleading bond investors about climate risk.
“This an outrageous abuse of the legal process.”
“This an outrageous abuse of the legal process that seeks
to limit the ability of law enforcement and local government to protect
their residents,” says John Cote, Communications Director at the San
Francisco City Attorney’s Office. “It’s an attempted end-run around the
California courts that have jurisdiction over this matter. In other
words, it’s exactly what you would expect from a company like Exxon.”
The counterattacks don’t appear to have had a deterring effect. Days after Exxon’s petition, city councilors in Los Angeles
introduced a motion to prepare a similar lawsuit, citing the recent devastating wildfires, heat waves, floods, and mudslides. In late January,
Richmond, California,
became the latest city to file a suit, listing damage from sea level
rise, droughts, heat waves, and extreme rainfall. This month,
Philip Levine,
the former mayor of Miami Beach who is currently running for governor
of Florida, said the state should look into suing fossil fuel companies,
again comparing them to cigarette makers.
It’s standard practice for fossil fuel
companies to push back fiercely against attempts to hold them
accountable for climate change, but it’s easy to see why the current
round of lawsuits would be worrisome. Research keeps finding a stronger
climate signal in more and more disasters, from drought and wildfire to
floods and avalanches. “If these cases survive, there’s a long list of
climate change impacts that could become the subject of such
litigation,” Burger says. The bill for adapting to them, whoever ends up
paying it, will be large.
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