POLITICO - Zack Colman
Researchers can now link weather events to emissions – and to the companies responsible. A string of lawsuits is about to give “attribution science” a real-life test.
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| iStock/POLITICO illustration |
Richard Heede spent a decade digging through “disheveled, dusty”
tomes in libraries around the world searching for the answers he thought
could help save humanity.
The Norway-born academic’s task was
direct, but far from simple: Find out how many greenhouse gases the
world’s fossil fuel companies, cement-makers and other industrial giants
had pumped into the atmosphere since the Industrial Revolution. A
geographer by training, he tagged library visits onto work trips to pore
over annual company and shareholder reports. (“Nobody had seen them for
decades,” he recalled.) He painstakingly traced mergers and
acquisitions as companies morphed and amalgamated. He enlisted
volunteers across the globe.
Like most analysts, Heede started his work on climate change focused
on what individual consumers could do to reduce their emissions. After
all, it was the consumer who was “consuming” the product and actually
releasing the emissions from the oil, gas or coal. But over time, he
recognized there was a flaw in that approach: Individual consumers can
make choices only among what’s already on the market — but who decided
what was on the market? Other, larger forces had shaped an economy
dependent on fossil fuels, he realized — companies who developed the
markets for fossil fuels and influenced decisions to build the
infrastructure that supported them.
He asked himself: Shouldn’t
the companies who profited from those decisions play a role in
mitigating them? With world governments making little progress toward
reducing emissions, perhaps pressuring the companies whose products were
causing the harm might have more effect?
“With federal policy
being unsupportive and still emphasizing continued energy development, I
just thought it would be a new lever to look at the companies that have
their hand on the tiller,” said Heede, who now lives in Colorado. “And
pressure can be exerted in a number of ways.”
By 2013, roughly a
decade after Heede began his search, he had his answer: Just 90
companies had contributed nearly two-thirds of the world’s industrial
emissions. He could even pinpoint the share of those emissions for which
companies existing today are responsible.
In effect, Heede had
established a pillar of a new field of research, now known as
attribution science. But it wasn’t just an academic exercise: It’s a
weapon that climate campaigners are starting to wield to put fossil fuel
companies on the hook for billions of dollars in damages. It’s a kind
of end run around a political system they see as forced into gridlock by
fossil fuel industry influence.
Heede and his collaborators are
part of a paradigm shift in how to assign blame for climate change. For
decades, as signs have grown that the planet is warming, the public and
defenders of industry have laid the blame on end users, the ordinary
people who drove their cars too much or blasted air conditioning in
their homes. Those add up. But attribution science has the effect of
moving the blame back one step, away from consumers and onto the
companies that extracted the oil, coal and gas that have powered our
planet for decades.
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| A gas flare from a petroleum refinery in Norco, Louisiana. Scientists
have now analyzed all the carbon emissions from the Industrial
Revolution until now and can calculate just how much can be attributed
to individual fossil fuel companies. The breakthrough is being used by
governments and other plaintiffs to sue oil and gas companies for the
environmental damage caused by their products. | Drew Angerer/Getty
Images |
If blame can be attributed to corporations or governments, they
believe, it can have two powerful effects: create a strong incentive for
those companies to once and for all move away from fossil fuels, and
unleash — through lawsuits — financial resources that could be used to
seed new technologies and better prepare communities for the calamities
climate change is expected to bring.
Attribution science is now
about to receive a very real test in the courts, as cities, states and
ordinary citizens across the world are using it to try to send fossil
fuel companies the bill for climate change damage.
The first
lawsuit over what fossil fuel companies revealed about the costs of
climate change comes from the New York attorney general, who has accused
Exxon Mobil of securities fraud. The suit alleges that Exxon used a
different internal estimate for the cost that carbon-reduction policies
would have on its business than it told investors; oral arguments for
that case begin this week.
“I didn’t know that the legal interest
would pick up so fast,” Heede said in an interview. “I didn’t know how
this data was going to be used. But I knew that for any legal action —
or, for that matter, shareholder pressure or regulatory pressure — we
had to know who the companies were and what they contributed.”
Attribution Science
Attribution Science originated with the very legal question it might now be used to address.
In
2003, the science journal Nature published an article by Oxford
University scientist Myles Allen titled “Liability for climate change.”
Allen wondered aloud how to solve “the attribution problem” to
demonstrate precisely how much burning fossil fuels were responsible for
worsening climate-linked developments. If one could do that, he
surmised, it would be possible to sue fossil fuel companies for damages.
A year later, Allen and colleagues Dáithí Stone, Peter Stott and Mark Hawkins published the first “extreme event attribution”
study.
Using computer models, they compared human-caused, post-Industrial
Revolution emissions with scenarios lacking such emissions, known as
natural variability. They concluded that man-made greenhouse gas
emissions had more than doubled the likelihood of the deadly European
heatwave of 2003, which killed 27,000 people. The analysis was
straightforward and remains the bedrock of extreme event attribution
science. In the years that followed, more severe weather patterns
followed, including Superstorm Sandy on America’s Eastern Seaboard in
2012. Weather forecasters cited in media reports tended to be
uncomfortable linking these events to climate change, often saying it
was hard to connect individual weather events to an overall pattern of
global warming. But the emerging attribution scientists didn’t agree. In
2015, Fredi Otto, acting director at the Environmental Change Institute
at Oxford University, and Heidi Cullen, a climate scientist who is now
at the Monterey Bay Aquarium Research Institute, formed the World
Weather Attribution group with the goal of providing “rapid response”
analysis of climate-fueled disasters. They wanted to show just how much
human emissions had worsened those events or made them likelier to
occur.
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| Homes on the New Jersey shore damaged by Superstorm Sandy in 2012. The
storm was one of a number of extreme weather events that spurred
researchers to develop a method to improve the attribution of extreme
weather events to climate change. | Mike Groll/AP Photo |
“We got pushback from the scientific community saying, ‘Well,
actually this is way too fast. You can’t do science so fast, and the
models are not good enough,’” said Otto, who did her postdoctorate work
under Allen.
Skeptics have since mostly dissipated, though some
remain. The Bulletin of the American Metereological Society began
publishing annual event attribution analyses in 2011. Reruns of the
World Weather Attribution analyses confirmed the group’s initial
efforts. It helped that the National Academy of Sciences wrote a 2016
report on climate attribution science and identified World Weather
Attribution’s methods as the gold standard. Last year, the European
Union’s Copernicus Climate Change Service asked World Weather
Attribution to write a road map to operationalize the science so it can
better predict and respond to disasters; a prototype could launch this
fall.
On top of that, computer modeling vastly improved, and
quickly, permitting the volume and sophistication required for World
Weather Attribution group’s mission. Michael Wehner, a scientist at
Lawrence Berkeley National Laboratory, said he today could complete his
study of the devastating 2013 Colorado floods in a matter of days,
whereas the original study took his team three years. He has since
expanded his work to hurricanes, finding that human-driven climate
change boosted Hurricane Harvey’s August 2017 rainfall by as much as 38
percent.
“Read the papers. If you don’t believe the papers, then
do your own,” Wehner said of attribution science critics. “This body of
literature, which is now fairly large, clearly tells us that dangerous
climate change is upon us, and people are suffering and dying — and it’s
real, and it’s going to get worse.”
Some scientists aren’t yet
ready to fully embrace extreme event attribution science. The
reinsurance industry, which covers megalosses in the event primary
insurers can’t foot the bill, contends other factors like building codes
and zoning decisions contribute a great deal to the overall financial
toll from major disasters.
“We follow the science very closely.
We try to understand what this actually means to the risk which we are
taking. But when it really comes down to attribution of certain events
to climate change, our view is that this piece of science is at an early
stage,” said Ernst Rauch, chief climate scientist and global head of
climate and public sector business development with Munich Re, a
reinsurance company.
Even the National Academy of Sciences in its
2016 report sounded a cautionary note. Finding the precise climate
fingerprint for events with nonmeteorological factors, such as drought
and wildfire, can be challenging. Events backed up by robust
observational records with well-understood physical effects, like
long-term temperature increases, are most scientifically sound.
“The
ability to attribute the causes of some extreme event types has
advanced rapidly since the emergence of event attribution science a
little more than a decade ago, while attribution of other event types
remains challenging,” the report said.
For any potential
uncertainty about climate attribution, Heede said there’s at least one
definite truth about fossil fuel companies that should override the
rest.
“They were aware decades ago what trouble climate change would be,” he said.
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| A stranded traveler resting in London’s St. Pancras rail station this
summer. Extreme heat damaged overhead power lines, interrupting
transport across Europe. | Leon Neal/Getty Images |
Climate Science Community
While the climate
science community was initially cautious about attribution science, lawyers were immediately intrigued.
“I think they recognized that it was a bit of a game-changer,” said Cullen, the climate scientist.
The
two scientific breakthroughs – the ability to link global warming to
the intensity of storms, rising sea levels and worsening heatwaves
combined with the ability to trace historical emissions to individual
companies dating back to the Industrial Revolution -- have laid the
legal groundwork for a string of lawsuits getting underway in coming
months.
“We can actually close this causal chain now,” said the
Environmental Change Institute’s Otto . “If the first judge has the guts
to actually accept such a claim and give a verdict against a big
polluter, then that will force these companies to change their business
models.”
So far, 13 state and local governments have filed
lawsuits against oil and gas companies like Exxon Mobil, BP and
ConocoPhillips, including the cities of New York, Baltimore, Oakland,
San Francisco and Richmond; Imperial Beach and Santa Cruz, Calif.; the
counties of Marin, San Mateo and Santa Cruz, Calif.; King (Wash.) and
Boulder (Colo.); and the state of Rhode Island. Another lawsuit by
Pacific Coast fishermen against Chevron also seeks climate damages.
The
cases face long odds. The legal arguments and the science are largely
untested in the context of suing individual companies for the
complicated effects of and myriad sources driving global climate change.
“It is very difficult to see how there can be a specific nexus
between the conduct of these defendants and any of the adaptations and
other costs that these municipalities are incurring,” said Brendan
Collins, an environmental attorney at Ballard Spahr LLP who is not
involved in the cases.
It’s not the first time plaintiffs have sought climate change damages from energy companies.
Fossil
fuel companies have successfully swatted away past cases, all of which
have been federal, in part because the courts say Congress has
responsibility for regulating greenhouse gas emissions, but Congress
hasn’t yet amended the 1990 Clean Air Act to incorporate concerns about
climate change. So, climate cases get stuck.
The novel legal
innovation this time is that plaintiffs are aiming to sue in state
courts. States have common law provisions that allow for claims under
two legal theories: public nuisance, that a party is interfering with
the rights of citizens, or product liability, that the dangers of using a
product must be communicated to the public. Plaintiffs are trying to
make the case that energy companies that extract, transport or market
fuels are a public nuisance because they are destroying their residents’
enjoyment of a stable climate and forcing costs on them. Under product
liability, plaintiffs are arguing that the companies pushed those
products into the market knowing these probable, damaging outcomes.
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| An overwhelmed surge barrier near New Orleans. Sea level rise is among the changes that attribution scientists are now able to link to carbon emissions. | Drew Angerer/Getty Images |
The lawsuits have caught the attention of business groups like the U.S. Chamber of Commerce, which penned two
white papers
outlining the threats to corporations presented by public nuisance
lawsuits in nonfederal courts. But the courts have so far rebuffed
fossil fuel companies’ attempts to punt the cases to federal
jurisdiction.
The lawsuits aren’t all the same. Some cities are
suing over past and future costs to defend against sea level rise;
fishermen want compensation for harming a West Coast crab fishery; suits
filed on behalf of children contend fossil fuel companies deprived
future generations’ quality of life by driving climate change. Most of
the lawsuits argue that fossil fuel companies marketed a product they
knew to be harmful without
acknowledging — and, in fact, sowing doubt and confusion about — those harms.
Plaintiffs
see a parallel to the tobacco industry. That industry fell victim to
product liability lawsuits because companies knew their product caused
harm but misled the public. More contemporary examples of successful
lawsuits include a case against Monsanto for cancer linked to its
weed-killer, Roundup, and action against pharmaceutical companies for
distributing opioids despite known risks and abuse.
Fossil fuel
companies have argued that they had no control over how their product
was used after selling it — it’s people who put gasoline in their cars,
not Exxon Mobil. They are also expected to argue that all levels of
government have cemented fossil fuels’ place in American society through
tax incentives, infrastructure spending and other policies. That is the
crux of what the companies argued in a federal case in the U.S.
District Court for the Northern District of California brought in 2017
by the cities of Oakland and San Francisco.
“Plaintiffs do not
assert that the mere extraction or sale of fossil fuels created the
alleged nuisance (nor could they), but rather that the combustion of
fossil fuels by third-party users — such as Plaintiffs themselves —
causes global warming and rising seas,” attorneys for BP, Chevron,
ConocoPhillips, Exxon Mobil and Shell wrote in a March 2018 motion to
dismiss.
The federal case ultimately was dismissed, but Oakland and San Francisco are appealing.
“They
will try to claim the harm from their product is not at all their
responsibility,” said Peter Frumhoff, science director with the Union of
Concerned Scientists, who helped develop the framework for using
climate attribution science in the courts. “It’s always somebody else,
isn’t it?”
The American Petroleum Institute spokesperson Reid
Porter said the oil and gas trade association would not comment on
pending litigation.
“The natural gas and oil industry is actively
addressing the complex global challenge of climate change, investing in
cutting edge technologies, efficiency improvements, and cleaner fuels,”
he said in an email.
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| Climate protesters in Bonn, Germany. Anti-corporate sentiment is growing among electorates both in the United States and overseas. | Maja Hitij/Getty Images |
While the novel legal arguments might face an uphill battle, they’re
already affecting the court of public opinion — and in that venue, the
plaintiffs seem to be winning. The idea of prosecuting companies has
gained currency among Democratic presidential candidates. Much like the
fight against pharmaceutical companies that knowingly pushed opioids on
American consumers, the push against fossil fuel companies resonates
with anti-corporate zeal sweeping voters in both parties.
The
political atmosphere is also far more partisan than the major
environmental courtroom victories of decades ago, and climate change is
firmly ensconced in the U.S. culture wars, noted Durwood Zaelke, founder
and president of the Institute for Governance & Sustainable
Development. Zaelke’s organization started the Center for Climate
Integrity, which is aiding the civil climate lawsuits.
But shifts
are occurring beneath the surface, Zaelke said. Investors are prodding
companies into action on climate, with companies like BP agreeing to
develop a strategy to survive as a business under policies designed to
keep global temperatures from rising 2 degrees Celsius. Republicans are
no longer debating whether humans are baking the planet, even going as
far as to offer policy solutions. Young activists have put climate
change front and center on the global agenda.
Events and public
opinion are trending in the right direction, Zaelke said. But it will
still take an enormous leap for a breakthrough. He thinks climate
attribution and the courts could provide the needed boost.
“I’m
in a pretty optimistic mood right now believing these strands can come
together,” Zaelke said. “We all have a chance to be a little more heroic
when circumstances demand, and that’s where we are — circumstances
demand more heroism from the lawyers, the youth, the judges.”
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