Local, County And State Governments Are Suing Oil Companies Over Climate Change

The Conversation - Patrick Parenteau*

• Local governments are suing big oil companies, alleging that higher sea levels brought about by climate change are a public nuisance.
• California, Washington state, and New York City are hoping lawsuits will force these companies to foot the bill for the effects of climate change. 
• Rhode Island became the first state to take this step, when it sued 21 oil and gas companies "for knowingly contributing to climate change and the catastrophic consequences to the State and its residents, economy, eco-system, and infrastructure."
• Several researchers have concluded that sea level rise and a warming ocean played a major role in making Superstorm Sandy so catastrophic.

Superstorm Sandy wrecked these Rhode Island cottages in 2012. AP Photo/Steven Senne

Thanks to climate change, sea levels are rising and storm surges are becoming more costly and frequent. Since most American state and local governments are cash-strapped, cities and counties fear that they won’t be able to afford all the construction it will take to protect their people and property.
So some communities in California and Washington state, as well as New York City, are suing oil companies in a bid to force them to foot the bill. Recently, Rhode Island became the first state to take this step, when it sued 21 oil and gas companies “for knowingly contributing to climate change and the catastrophic consequences to the State and its residents, economy, eco-system, and infrastructure.”
Does it make sense to hold the industries responsible for global warming liable for the price – in dollars and cents – that everyone will have to pay to adapt to a changed climate?
As a scholar of environmental law, I believe climate liability cases like these have merit.

Chevron, one of the five oil majors being sued, objected to San Francisco and Oakland's claims of nuisance law, and sought to transfer lawsuit to a federal district court. Jonathan Bachman/Reuters 

A public nuisance

Superstorm Sandy caused over $60 billion in damage along the New Jersey and New York coasts. Lucas Jackson/Reuters 

The local governments asking the courts to intervene allege that higher sea levels brought about by climate change are a public nuisance. That may sound odd at first, but I believe that is fair to say. It is also the legal basis on which similar liability lawsuits have been filed before.
The sea level along California’s coasts may have risen about 8 inches in the past century. Scientists project that they may rise by as much as 55 inches by the end of this century.
That worst-case scenario would put nearly half a million people at risk of flooding by 2100, and threaten US$100 billion in property and infrastructure, including roadways, buildings, hazardous waste sites, power plants, parks and tourist destinations.
Superstorm Sandy caused over $60 billion in damage along the New Jersey and New York coasts. Several researchers have concluded that sea level rise and a warming ocean played a major role in making that storm so catastrophic.
The Trump administration has released a national climate change assessment, confirming that extreme weather events – storms on steroids – are becoming more frequent and intense.
If anything, characterizing these catastrophes as a public nuisance is an understatement.

A question about jurisdiction
Oakland and San Francisco both sued five of the world’s largest oil companies in state court, asserting claims based on California’s own nuisance law. They are seeking billions of dollars for an abatement fund.
But Chevron, one of the five oil majors being sued, objected and sought to transfer the San Francisco and Oakland lawsuit to a federal district court, where Judge William Alsup recently dismissed the case.
Still, it wasn’t a clear win for oil companies.
Alsup accepted the scientific consensus that the defendants’ line of business is driving climate change and therefore poses a clear and present danger to coastal communities and others. But in his ruling, he also questioned whether it’s “fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded.”
And while the judge also acknowledged that federal courts have the authority “to fashion common law remedies for claims based on global warming” he opted to “stay his hand in favor of solutions by the legislative and executive branches.” In other words, he said it’s up to Congress and the White House to figure out whether oil companies ought to pay to, say, move San Francisco’s airport to higher ground.
Even if prospects for federal action on this front are next to nil for the foreseeable future, given the Trump administration’s warm embrace of oil, gas and coal, this is no legal dead end. I believe that Oakland and San Francisco will surely file an appeal to the 9th Circuit, which could rule differently.
Even more importantly, there is another case pending that is taking a different course. The counties of Marin and San Mateo and the City of Imperial Beach, California, are also suing oil companies with similar climate liability claims. Judge Vince Chhabria sees things differently than Alsup and ruled that state law, not federal law, should prevail.
He has ordered that case back to state court, a move that Chevron, BP, ExxonMobil and the other oil company defendants are trying to prevent.
In addition to coastal communities concerned about rising sea levels, several Colorado counties filed their own climate liability cases in April 2018. Those lawsuits allege that oil companies should be held responsible for the higher temperatures now reducing the state’s snowpack. Getting less snow is jeopardizing Colorado’s agriculture, water supply and ski industry.

Several legal precedents

The oil industry has reportedly known for 60 years or longer that burning fossil fuels would eventually overheat the planet. REUTERS/Brendan McDermid 

I maintain that these cases do belong in state court because there are many relevant legal precedents.
U.S. courts have repeatedly held manufacturers liable for the damage their products wreak, especially when those companies knew full well that their products, used as intended, would cause that harm.
The biggest precedent is the tobacco industry’s 1998 settlement with the states, which called for companies to pay out $246 billion over the next 25 years.
In addition, there have been many judgments against oil companies and other corporations responsible for manufacturing a potentially cancer-causing chemical called MTBE that used to be a common gasoline additive and has contaminated public water supplies.
And a panel of California judges ordered paint companies to pay more than $1 billion to help get lead out of housing that remains contaminated decades after the government banned lead-laced paint. The companies are vowing to take the case to the Supreme Court if they can.
Currently, another new kind of liability lawsuit is emerging against opioid manufacturers. Ohio and at least six other states are seeking damages to help cover the expense of dealing with widespread addiction from the allegedly irresponsible marketing of prescription painkillers – which it says the companies should have known were being abused.

Exxon knew
As for the oil industry, it has evidently known for 60 years or longer that burning fossil fuels would eventually overheat the planet, with monumental consequences.
Rather than alert the public and engage in good-faith discussions to address the problem, oil majors like Exxon sought to mislead and deny what they knew about the risks of fossil fuels. Furthermore, the fossil fuel industries have sought to block any meaningful federal climate response by donating vast sums to the political campaigns of candidates who promised to oppose the requisite policies.
In a perfect world, the nation’s elected leaders at all levels of government would be hard at work passing laws and establishing programs to confront the existential threat of climate change and to help communities prepare for the unavoidable impacts that are already baked into the system.
Alas, that is not the case. The courts are the last line of defense in this epic struggle to deal with the effects of climate change – including the astronomically expensive costs of moving housing, businesses, schools and other structures out of harm’s way.

*Professor Patrick A. Parenteau, formerly director of Vermont Law School's Environmental Law Center and of the Environmental and Natural Resources Law Clinic, is recognized for his expertise regarding endangered species and biological diversity, water quality and wetlands, environmental policy and litigation, and climate change. The courses he currently teaches at Vermont Law School include Climate Change and the Law, Extinction and Climate Change, Water Quality and Environmental Litigation.

Links

• Children Sue Washington State Over Climate Change
• The Netherlands Contemplates The World’s Toughest Climate Law
• Rhode Island Sues Oil Companies Over Climate Change, First State To Do So
• A Landmark Climate Change Ruling Could Go Up In Smoke After Justice Kennedy Retires
• Judge Tosses City Climate Change Lawsuits Against Big Oil
• Here’s Why The Bay Area Lost Its Lawsuit Against Big Oil
• Federal Judge Dismisses Cities’ Suit Against Oil Companies Over Costs Of Climate Change
• ASIC Warns On Climate Risk As Heat Turns On Directors
• The Climate Litigation Threat Is Getting Credible
• Grave Climate Warning For Governments And Business: "This Is About Money"
• Dutch Government Appeals Against

Tender Will Allow Coalition To Dig Its Way Out Of Coal Hole

Fairfax - John Hewson*

The federal government desperately needs a cut-through strategy on energy policy. The divisions within the Liberal Party, and between the Liberal and National parties, won’t go away, even though they are costing them electoral support and may ultimately cost them government.
Perhaps the most direct and effective mechanism for the government to cut through, and demonstrate the authenticity of its claim to be “technology agnostic”, would be to announce a tender to meet its future, carefully specified, power requirements, establishing a genuine competitive process, encouraging all parties to give it their best shot.

Illustration: Matt Davidson

This could be the simplest and quickest mechanism to end the faux coal vs renewables contest, and should be seen as a genuinely conservative solution.
This would certainly be an effective fact-check, exposing the strengths and weaknesses of the multiplicity of claims and counterclaims and providing the most effective base on which to consider the recent ACCC recommendation that the government consider supporting and facilitating the development of new base load electricity capacity.
The detail of the various positions within the government debate tends to move around. Some just seize on virtually any argument or event to disrupt, while others claim an affinity with what they like to call an ideological position, or our national economic advantage.
Much of the debate turns on prejudice rather than analysis, expressed as preferences for particular resources and technologies. For example, the pro-coal/anti-renewables group makes several points. Australia is the world’s largest exporter of coal; it is a significant industry in terms of jobs and growth; burning coal to make electricity is cheap and provides reliable, 24/7, base load power. They pose the question: “Why should we sacrifice our global competitive position and source of 'cheap' and reliable power – indeed, why don’t we seek to exploit it further as our industrial and export base?"
They argue that we have been sacrificing all this by subsidising renewables, with the result that electricity prices paid by households and businesses have soared and reliability has been seriously compromised - that wind and solar can’t provide stable and dispatchable 24/7 base load. Indeed, that they have introduced an intermittency problem, being unable to consistently meet the morning and evening peaks in demand. They claim the business model for renewables hasn’t been proved in the absence of the subsidy from the renewable energy target.

Coal loading facilities at Port Waratah in Newcastle. Photo: Nic Walker

Mostly, this pro-coal group ignores the climate challenge. Indeed, some of its members would have us withdraw from our Paris commitments on emissions reductions. They make a multiplicity of sub-points - Australia is only a small emitter by global standards, so our emission reductions won’t make much difference against the big emitters in the United States, China and India; if we don’t burn our coal, others will; others are continuing to build new coal-fired power plants.
Of course, such points ignore our position as near-to-the-highest per capita emitter and any global responsibilities we may have as the world’s third largest exporter of fossil fuels and the largest coal exporter.
To the extent that coal advocates acknowledge the need to reduce emissions, they pin their hopes on technologies such as carbon capture and storage that "promises” to catch the gas emitted from electricity generation, liquefy it, transport it and store it – even though this technology has not been demonstrated commercially, at scale, despite billions having been spent globally on its development. Ironically, carbon capture and storage might need a carbon price in excess of US$100 a tonne to be commercially viable.
What is most surprising is how resistant the coal industry and their political supporters have been to alternative technology solutions which would allow them to sustain coal more effectively through the transition phase.
I have worked with technologies that are Australian owned and proven (in one instance by the US government, at scale, in the 1980s) to clean up coal – all consistently eschewed by coal companies over the years that insist their business model is to “just dig and ship”.
Resistance to conversion technology has been, to say the least, odd, in a coal-rich country with dangerously low fuel security.
Don’t get me wrong, I am not advocating such technologies, just making the point as to the blinkered absurdity of many in the pro-coal lobby who simply don’t want to acknowledge the need for any change.
The coal lobby also choose to ignore the rapidly mounting resistance of the finance community to finance or insure new coal-fired power plants – hence, they hope to push government to underwrite it.
The key point is that these transition arguments have become much less relevant as the unsubsidised cost of renewables and effective storage has dropped significantly so they can now deliver cost competitive, reliable and dispatchable 24/7 base load electricity, driving an effective transition to a low emissions industrial and societal base.
The proposed tender process would cut through all these claims and counterclaims and allow the government to be genuinely technology neutral. It would be able to avoid having to make some sort of side-deal on coal, sacrificing its neutrality, to get party room support for the National Energy Guarantee.
This would require the government to amalgamate its power and technical requirements, specifying magnitude and time profile and other desired network services, while being consistent with its Paris commitments. This would be the most effective way to have those who are advocating new ultra super critical coal-fired solutions demonstrate their bona fides against solar thermal, or wind/solar photovoltaics with effective storage.
A well specified tender process would force all sides to put up and shut up, hopefully once and for all.

*John Hewson is a professor at the Crawford School of Public Policy, ANU, and a former Liberal opposition leader.

Links

• Energy policy would not be that hard if the government wasn’t hamstrung by ideologues
• Renewables Will Replace Ageing Coal Plants At Lowest Cost, AEMO Says
• Energy plan keeps the coal fires burning as long as possible
• AEMO 2018 Integrated System Plan
• Energy plan keeps the coal fires burning as long as possible
• King coal to rule for 20 more years, says independent energy market operator
• AEMO study a "game plan" for transition of the energy sector

Renewables Will Replace Ageing Coal Plants At Lowest Cost, AEMO Says

The Guardian - Katharine Murphy

Forecast by energy market operator is a blow to Coalition MPs campaigning for new coal-fired generation

Some 30% of coal power plants will be decommissioned in the next 20 years and it will be cheaper to replace them with renewables than with new coal plants, AEMO says. Photograph: Josh Wall/Guardian Australia

Australia’s energy market operator says the future of power generation in Australia will be renewables with storage, and gas, with those technologies able to replace the power currently supplied by coal generators at least cost.
A new forecast by the Australian Energy Market Operator (AEMO) notes 30% of Australia’s coal generators will approach the end of their technical life over the next two decades, and it says it is important to avoid premature departures if the looming transition in the national energy market is to be orderly.
But while some in the Turnbull government have been campaigning to bolt new coal-fired power into the system, backed with government subsidy or underwriting, AEMO is clear about where the future lies, and it is not with coal.
It says the future of power generation in Australia is renewables with storage, pumped hydro and flexible gas-powered generation.
The market operator says in a forecast to be released on Tuesday that when existing coal resources retire “the modelling shows that retiring coal plants can be most economically replaced with a portfolio of utility-scale renewable generation, storage, distributed energy resources, flexible thermal capacity, and transmission”.
While some in the government have sought to portray new coal generation as a low-cost option for consumers concerned about high power prices, AEMO’s new forecast completely debunks that argument.
It says the lowest-cost replacement options for retiring coal plants “will be a portfolio of resources, including solar (28GW), wind (10.5 GW) and storage (17 GW and 90 GWh), complemented by 500 MW of flexible gas plant and transmission investment”.
The energy market operator concludes that mix of generation can produce 90 terawatt hours of energy per annum, “more than offsetting the energy lost from retiring coal-fired generation”.
It says the increasing penetration of rooftop solar and other distributed energy resources is having a profound effect on the power system, and it says a growing proportion of supply will come from this form of generation rather than baseload.
The new assessment also suggests Australia’s electricity transmission infrastructure will need to be reinforced to ensure the grid performs optimally after the shift.
It says targeted investment in new transmission “will minimise the overall cost and support consumer value by making better use of existing plant, including distributed energy resources, lower fuel and operating costs and operating risk by a more inter-regionally connected system, and provide system access to the least-cost supply resources that can replace the retiring coal plant”.
The forecast says the cost of replacing the retiring generators with new assets is “significant and unavoidable” – somewhere between $8bn and $27bn, depending on assumptions made around economic growth and rate of industry transformation.
But it says targeted investment in transmission infrastructure, rather than power generation, would create efficiency gains, with cost savings between $1.2bn and $2bn, as well as creating a more robust, resilient, flexible and adaptable network.
The report lays out a three-stage program of investment. A failure to invest in transmission infrastructure would increase consumer costs and risks, AEMO says.
AEMO’s chief executive, Audrey Zibelman, says Australia’s energy market is experiencing “an unprecedented rate of change”.
“We are witnessing disruption across almost every element of the value chain,” Zibelman says. But she says the looming transition will require careful planning “to manage this transformation in order to minimise costs and risks and maximise value to consumers”.

Links

• How Tesla's big battery is bringing Australia’s gas cartel to heel
• Energy policy would not be that hard if the government wasn’t hamstrung by ideologues
• AEMO 2018 Integrated System Plan
• Energy plan keeps the coal fires burning as long as possible
• King coal to rule for 20 more years, says independent energy market operator
• AEMO study a "game plan" for transition of the energy sector

Climate Change Is Behind The Global Heat Wave. Why Won't The Media Say It?

Los Angeles Times - Leah C. Stokes*

The sun rises over Burbank on a triple digit day. (Richard Vogel/Associated Press)

Last week’s heat wave brought record temperatures to Southern California. Hot winds blew fire into my community in Santa Barbara County, ripping through a dozen homes and threatening hundreds more.
I tuned into the local news channel, where reporters reminded viewers that we had just finished a record-breaking fire season. They strained to list all the fires we’d had over the past decade. There were too many to recall.
Fires are happening a lot more often across California. You can’t accurately call it a fire “season” anymore. The season is year-round.
But journalists who report on the fires or heat waves rarely acknowledge this reality. Last week, the local newscasters in my area never did, even though it has a very familiar name: climate change.
The same is true of the media at large.
Although it reports on each fresh disaster — every fire, every hurricane, every flood — it tends to stop short of linking extreme weather events to global warming, as though the subject were the exclusive province of reporters on the climate beat.
As a result, we’re missing what is arguably the biggest story of all: The climate we knew is no more. We’ve already warmed the planet, whether we deny it or not.
It’s not hard to spot global warming in the news. If you’re looking, its marks are everywhere. Right now, southern Japan is flooded. Two months’ worth of rain fell in five days, a day’s worth in an hour. Mudslides followed. More than 200 are dead, more are missing, millions are displaced.
But to get the larger story about extreme weather events, you have to read between the headlines.
There is no sound justification for this. Not anymore.
Scientists have been churning out evidence of human-caused climate change for more than a century. Some are figuring out exactly how much to blame global warming for any given weather event. They're getting really good at it.
We can now link many recent disasters and weather events to climate change. We know, for instance, that more than three-quarters of moderate heat waves are connected to warming. We also know that, were it not for climate change, fires in the West would have burned half as much land since the 1980s.
Scientists have been documenting the increase in extreme rain events in Japan since the early 1990s.

The science is clear. Journalists need to start using it.

There are reasons they haven’t. Reporters are trained to distinguish weather from climate. They are also conditioned to avoid the appearance of political bias, and a decades-long campaign to sow doubt about global warming has cast a partisan aura on the facts.
But with a bit of nuance, journalists can carefully identify the pattern. Any weather event has multiple causes. More and more, climate change is one of them, and its share of blame is growing.
The public is not entirely in the dark.
In fact, research by Peter D. Howe, a geographer at Utah State University, shows that 60% of people in 89 countries correctly perceive that temperatures where they live have warmed over time. According to a study by the political scientists Matto Mildenberger and Dustin Tingley, most Americans underestimate how many people share their belief that climate change is real. Most of us know this is not a drill, and most of us want our government to do more.
We all need to do more. Countries around the world need to go beyond the commitments made in Paris.
We need more wind and solar energy. We need states to keep nuclear plants open when they are safe, because they already produce clean energy. We need to stop rolling back renewable energy laws, as my research has documented in Ohio, Texas and Arizona.
But we won’t do any of this until we can see what’s happening.
Journalists play a critical role in helping the public to make these connections. They need to start telling the whole story.

*Leah C. Stokes is an assistant professor of environmental politics at UC Santa Barbara.

Links

• Major broadcast TV networks mentioned climate change just once during two weeks of heat-wave coverage
• Media failed on climate and extreme weather coverage last year. Will they do better in 2018?
• Dear Media: We Need More Stories About Resilience To Climate Change
• How To Change The Climate Story: Paul Hawken
• Commentary: Climate Change Needs Better Storytelling To Address Severe Threats
• Weather Alert
• TV Networks Did A Really Crap Job Reporting On Climate Change Last Year
• At Climate Feedback, Scientists Encourage Better Science Reporting. But Who Is Listening?
• Analysis: The Climate Papers Most Featured In The Media In 2017