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Following in the path of lawsuits brought against tobacco companies in the 1990s, cities and states are seeking to use the courts to hold fossil fuel companies liable for damages caused by climate change.
Piggybacking off a legal strategy that proved successful decades ago against the tobacco industry, as many as 15 local and state governments in recent years have filed lawsuits against companies that produce fossil fuels, seeking reimbursement for the costs associated with both past and future damages caused by climate change.
Local governments argue these companies are to blame for the greenhouse gases produced by their products, which contribute to higher average temperatures and rising sea levels, as well as more frequent extreme weather occurrences like rainstorms, drought, and hurricanes. For governments, all of these changes are expensive, requiring them to adapt infrastructure and services for residents.
“We’re seeing quite a diversification of people bringing cases,” said Joana Setzer, a research fellow at the London School of Economics and Political Science who recently co-authored a study that looked at trends in climate change litigation around the globe. While previous climate litigants were more likely to be non-profit environmental groups, governments for the first time are taking center stage in court, she said.
Plaintiffs in these lawsuits seem to be following the strategy laid out by states that brought litigation in the 1990s against tobacco companies, said Setzer. Forty states sued tobacco companies under state consumer protection laws, alleging that the companies were liable for the costs that tobacco-related illnesses put on public health systems. By 1998, 46 state attorneys general reached a settlement in the state cases with four tobacco companies, in which the companies agreed to pay an annual sum to states.
Now, cities are hoping to invoke a similar president to ensure that the cost of dealing with climate won’t fall solely to taxpayers. The first eight climate suits were filed in 2017 by counties and localities in California, most notably San Francisco and Oakland. Cities across the country took notice, and by 2018, suits had also been filed by New York City, Seattle, Baltimore, and Boulder, Colorado. Rhode Island was the first state to pursue a legal suit. Defendants in the suits include major oil and gas companies like Exxon, BP, and Chevron, in addition to some smaller corporations.
The legal strategy was dealt a serious setback in June 2018, when a federal judge rejected the San Francisco and Oakland cases. The other California cases, however, were remanded back to state court, where they remain active.
In his order, U.S. District Court Judge William Alsup said he acknowledges the profound threat of global warming, but emphasized that the judiciary is not the place to fix climate change. Instead, the issue needs to be dealt with by federal agencies, in Congress and through international agreements, he wrote.
“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case,” Alsup said.
The president of the National Association of Manufacturers, Jay Timmons, said in a statement after the ruling that this should serve as a warning for other cities.
"Other municipalities around the country who have filed similar lawsuits should take note as those complaints are likely to end the same way," he said. "New York City, Boulder, and the other California municipalities should withdraw their complaints and follow the lead of others that are focused on meaningful solutions."
Aside from the San Francisco ruling, Setzer said coastal cities might have the strongest cases, as there is plentiful research linking greenhouse gas emissions to rising sea levels. “Those cases look mostly into the future,” she said. “They estimate how much the government will have to spend now to avoid future damages.”
Local governments have brought a variety of legal strategies to court to argue these cases, using public nuisance laws, human rights standards, and violations of the Clean Air Act, as well as more novel strategies that use fraud and consumer protection legislation that hadn’t previously been used in environmental lawsuits. As with the tobacco lawsuits, one common thread in the lawsuits is accusing fossil fuel companies of publicly concealing the threats posed by climate change when their own internal research acknowledged the devastating potential of global warming.
Setzer said it’s likely that more and more cases will go beyond environmental law, delving into tax and commercial law, or going after subsidies the companies have taken.
Whatever strategy they take, Setzer said local governments might not necessarily bring their cases to win. As with litigation against the tobacco industry, where it took years to reach a consolidated settlement, the first cases in the trend might be made to inflict reputational damage on companies. “That’s hard to measure in these strategic cases, but is something that’s part of the equation,” she said. “They are other ways to win besides in court.”
Richard Herz, the senior litigation attorney for EarthRights International, who is working on the Colorado case brought by Boulder and San Miguel counties against Suncor Energy, said the lawsuit is not meant to be a symbolic action, however. The counties are suing Suncor, an oil company based in Denver, for “causing and exacerbating climate change,” which they link to more frequent wildfires and flooding in their area.
“These communities are facing significant costs that will mount exponentially over time due to the impacts of climate change,” Herz said. “And this case is meant to determine whether that cost should be borne entirely by taxpayers or if some of that responsibility should fall on those who caused that damage.”
Herz said that the Colorado counties are dealing with increased and more intense wildfires, heat waves, and infestations of pine beetles, along with changing precipitation patterns, worse ground-level ozone, and infrastructure problems. Because of these highly-localized effects, Herz said that communities should be able to seek their own legal remedies.
In court, Suncor has responded that the company is wrongly being held liable for problems that are much broader than is reasonable. “Plaintiffs’ claims derive from the nationwide and global activities of not only Suncor Energy...but also billions of fossil fuel consumers,” a one motion reads. “As such, Plaintiffs seek to hold Defendants liable for global conduct—the vast majority of which involved nonparties and occurred outside of Colorado.”
A central dispute in these lawsuits is whether the legal challenges should play out in state or federal courts. (This was also the case in tobacco litigation, when companies argued that federal law regulating tobacco preempted state law, and therefore they could not be sued in state court.) Companies have argued to remove cases from state to federal court, often because they say that local governments are asking the court to step into the shoes of lawmakers and regulate emissions.
In one such motion to move to federal court, Suncor said that pursuing this case in state court would be asking “the judiciary to wade into the thicket of the ‘worldwide problem of global warming.’”
Herz said that is a mischaracterization of what local governments are actually seeking. “These are local issues seeking remedy under state tort law,” he said. “It’s not about regulating emissions at all, it’s about making them pay their fair share.”
As Congress has seemed reluctant to take up the climate change issue, Herz argued the courts are the only option for cities and states seeking money to pay for mitigation efforts.
In order to win that financial relief, however, local governments often have to spend thousands of dollars on litigation, money that critics say could go elsewhere in the community—making the decision whether or not to sue a challenging one.
Setzer said that local governments are in a tough position, as they are more at risk than the federal government to have litigation brought against them by citizens and insurance companies if it appears they aren’t doing enough to respond to climate change. Because of that, Setzer said it’s likely that the country will see more cases like one in Illinois, where in 2014, Farmers Insurance brought class action suits against nearly 200 Chicago-area local governments, charging that the municipalities did not account for the effects of climate change in their stormwater management plans. The company later dropped the suits, but said that officials believed their cases “brought important issues to the attention of the respective cities and counties, and that our policyholders' interests will be protected by the local governments going forward.”
Emma Coleman is the assistant editor for Route Fifty.
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