The days of constructive political debate and compromise in the legislative and executive branches of government are gone, leaving the courts as the primary venues in which the causes and consequences of global climate change are being debated, and stable solutions sought.
The growing number of climate cases being filed in both federal and state courts is paralleled by the increasing number of legal theories being relied upon to bring them. Today’s actions go much beyond traditional legal challenges, i.e., how an agency went about crafting or rescinding an environmental regulation or whether an emission exceeded the legal limit.
Some cases are looking to expand constitutional protections to guarantee the personal right to live life in a habitable environment. A right that, once established, requires a government response that rises above partisanship.
Other suits seek to recover the costs their communities have incurred because of a company’s knowing disregard of the damage caused by their emission of greenhouse gases—whatever the established legal limit.
The plaintiffs and defendants in climate cases vary and, at times, their roles are reversed. They include individuals of a certain age, federal, state, county and city governments, interest groups of both climate defenders and deniers, business organizations and major oil companies. Joining them as friends of the court (amici) are members of Congress, religious groups and former heads of federal agencies.
The courts were never designed to be the primary venue in which climate defenders and deniers were meant to debate and decide national environmental policy; they have taken on the role by default. There are limits to what the judiciary can consider, decide and do.
A judge can only hear an actual case and controversy; she cannot gratuitously decide an Act is wanting in detail or poorly written and return it to the legislature for editing. Once a decision is made by a lower court, it may be appealed to a superior tribunal—taking years to become final.
Judges make decisions, they do not enforce them. It is up to others to carry out an order of the court. There is no known instance in which the nine justices of the U.S. Supreme Court came down from the bench to force Congress or the president physically to comply with its decision. Should a decision not be enforced, it is up to the people to exert the necessary pressure—ours is a government by consent.
Despite its limitations, the courts hold certain advantages over the legislative and executive branches of government—particularly in times of political turmoil. Among these is the tradition of stare decisis, which literally translated is “to stand by things decided.” A centuries-old common law concept, it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.
Not without negative externalities, the doctrine infuses a degree of stability into the legal system; an element much lacking in today’s political environment.
Stare decisis is not an inexorable command. A court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously.
Climate change is an emerging area of the law. Although standing by things decided, judges and justices are being forced by circumstances to feel their way through a legal labyrinth. They often enter the maze without the benefit of established precedents or a clear understanding of the science on which the claims are made and for which the often-extraordinary remedies are requested.
Before a sustainable environment is elevated to a constitutional right, oil companies are ordered to pay billions of dollars in damages, or governments directed to rise above partisan politics, the courts must be convinced that climate change presents a clear and present danger to society—that changing human habits can make a difference.
It is fair to ask is the judiciary up to the task? Consider, then, the words of Magistrate Judge Thomas Coffin of the U.S. District Court (Oregon):
Whether…climate change is occurring, whether…human induced, and the degree of its severity and impact on the global climate, natural environment, human health is quintessentially a subject of scientific study and methodology, not solely political debate. The judicial forum is particularly well-suited for the resolution of factual and expert scientific disputes, providing an opportunity for all parties to present evidence, under oath and subject to cross-examination in a process that is public, open and on the record. (emphasis added)
The following paragraphs focus on several of the most recent climate lawsuits. They illustrate various causes of actions and actors. Readers will do well to remember climate-law is currently more unsettled than climate-science.
Time will tell what standards of evidence will be followed in these cases and whether justice requires the certainty of scientific fact deniers seem to demand; or, if the courts will be content to act upon a preponderance of available evidence. In the final analysis, assignment of the rights and responsibilities of plaintiffs and defendants will depend upon the answer to this question.
Juliana v U.S.: For Children of All Ages
The Trump administration lost yet another attempt to keep the judiciary out of its business. Its request to have the young defendants in the Juliana case thrown out of federal court was denied by the United States Court of Appeals for the Ninth Circuit.
Juliana was filed in 2015 on behalf of 21 plaintiffs, all under the age of 21. The plaintiffs seek to establish a federal constitutional right to be protected from the ravages of climate change.
When Juliana is finally gaveled to order later in 2018 or early in 2019, the judge will be asked to rule on both the laws of society and science. It will mark one of the first times that climate-science will be introduced into evidence in a court of law. It will not, however, be the last time scientists are called to the witness stand.
The March decision by the Court of Appeals was not on the substance—legal or scientific—of Juliana but on the right of the plaintiffs to have their arguments heard and ruled on by the U.S. District Court for the District of Oregon. Technically the U.S. Department of Justice (DOJ) complaint was against the Oregon [Federal] District Court, hence the case title United States v. USDC-ORE.
The Trump administration was asking the Appellate court to stop the case in its tracks claiming it would be bothersome to defend against and, in the event of a finding for the plaintiffs, potentially in violation of the Constitution’s separation of powers provisions. The claims were found lacking.
The three-judge panel considered the Administration’s request premature as it has gotten no further than an initial filing:
…this case is at a very early stage, and that the defendants have ample opportunity to raise legal challenges to decisions made by the district court on a more fully developed record, including decisions as to whether to focus the litigation on specific governmental decisions and orders...the defendants will have ample opportunity to raise…any legal objections they have…
appellate review is aided by a developed record and full consideration of issues by the trial courts.
No matter the final outcome of the case, Juliana promises to impact future court decisions. It has already established important precedents concerning who has standing to sue the federal government for actions both taken and avoided and has given rise to similar suits in the U.S. and abroad.
Cities and counties claim they’re being tort-ured by fossil fuel companies
Cities and counties around the country have begun filing nuisance suits against major oil companies. In California, the City of Oakland, the City and County of San Francisco and the counties of San Mateo and Marin are among the jurisdictions to have filed cases in state court. Over on the East Coast, New York City has initiated a similar case against ExxonMobil and other of the big oil companies. In addition to the nuisance allegations, the plaintiffs are accusing the oil companies of knowing the causes of climate change and consciously ignoring the consequences.
The plaintiff cities and states have chosen to follow the same path followed earlier in the tobacco and asbestos suits. State nuisance laws are reasonably well established compared to federal laws. Nuisances are considered tortious acts for which compensatory and punitive damages may be awarded. Courts can also enjoin the continuation of the harmful acts.
A tort is defined in law as an act or omission that gives rise to an injury or harm to another and amounts to a civil wrong for which courts impose a liability. The dollar amounts involved are potentially astronomical.
The California cases are essentially the same; all are based on state nuisance statutes, allege the oil companies knew of the climate consequences of their actions and are seeking billions of dollars in damages caused to their communities, e.g., from rising sea levels. As well, the defendant oil companies petitioned to have the cases removed from the state court and tried in the U.S. District Court for the Northern District of California.
The oil company removal motions in the cases were assigned to different federal district court judges. The result was—two judges, two different opinions. The San Francisco and Oakland cases (People of California v. BP, Chevron, ConocoPhillips, et al.) are now being heard in federal court, while the Counties of San Mateo and Marin and city of Imperial Beach cases remain in the state court. The conflicting jurisdictional opinions may well lead to very different outcomes, at least at the trial court level.
Judge Alsup’s removal of People from the state court to his District Court is considered a victory for the oil companies—perhaps prematurely. Earlier federal lawsuits, e.g., American Electric Power v Connecticut, had found that the Clean Air Act (CAA) displaced federal nuisance claims.
As a CAA case, the defendants need only establish their compliance with federal regulations to defeat plaintiff claims. Should the alleged activity comply with federal standards—even if harmful—the companies would not be liable for any damages. If the problem is the federal regulation, then the plaintiff’s recourse is to sue the issuing agency.
If guilty, the violator is subject to a compliance order and civil penalties. Although potentially steep, the fines would likely amount to sums much below the totals of compensatory and punitive damages that could be awarded under the state civil liability statutes. Presumably, violators would still be allowed to continue operations once their facilities/actions met the federal standard.
In the San Mateo, Marin and Imperial Beach cases, District Court Judge Chhabria ruled the suits were to remain in the California court system. Chhabria thought to justify removal from state court to federal court; a defendant must be able to show that the case being removed fits within one of a small handful of small boxes. The Judge did not believe the suit fit in any of the boxes.
Judge Alsop had a different take on the situation. He worried that if a precedent was established to hear these types of cases in state courts, it could lead to [a] patchwork of fifty different answers to the same fundamental global issue [which] would be unworkable” and “the extent of any judicial relief should be uniform across our nation. Given that other local jurisdictions, e.g., New York City, are bringing similar suits against the major oil companies, the patchwork problem is hardly hypothetical.
Alsup went on to say: Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available. (emphasis added)
It is still possible for the cases sent back to the state court by Chhabria to be once again removed to the federal court. The Judge has stayed his order for six weeks, giving the oil companies time to appeal his decision. The outcome in those cases will also impact three similar suits by the County of Santa Cruz and the cities of Richmond and Santa Cruz.
The decision in People has an added dimension of importance for the future of climate-related lawsuits. In what court watchers are calling an intriguing aspect of his ruling, Judge Alsup has invited the plaintiffs and defendants in People to conduct a two-part tutorial on the subject of global warming and climate change:
(1) The first part will trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historical cooling and warming, smog, ozone, nuclear winter, volcanoes, and global warming.
(2) The second part will set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.
Judge Alsup’s order to satisfy his curiosity produced a series of presentations from both the plaintiffs and the defendants that largely confirmed what a majority of the scientific community has been saying for decades--
Climate change is happening! It’s “extremely likely” caused by human activities! It’s not a good thing!
By all reports, the whole proceeding lacked drama—no outbursts nor fisticuffs--no pointing of the Judge’s gavel warning of a night in jail. The only possible surprises were the lawyer for Chevron (Boutrous) admitting the Intergovernmental Panel on Climate Change (IPCC) is right and Alsup’s total disinterest in hearing what leading deniers had to say.
Well-known climate deniers, including Willie Soon, William Happer, Richard Lindzen and Steven Koonin, along with The Viscount Monckton of Brenchley and others did attempt to be part of this day in court. All asked leave prior to the tutorial to file an amicus brief outlining their positions. Alsup has yet to grant them permission, however. Whether their views will find a way into the court record is still a matter of speculation.
If Lawyer Boutrous’ accepting the findings of the IPCC was a surprising, his claims that the defendant oil companies were neither responsible for global warming nor liable in the case for any damage done to the people of the City and County of San Francisco and the city of Oakland were not. Boutrous took a defensive tack that will become common in all climate-tort cases involving the oil companies:
This last point is the standard response of tobacco companies, assault rifle manufacturers and almost any other defendant company or industry in a liability suit. “We just make/mine the stuff.”
For all the importance appropriately attributed to this “first-ever” introduction of climate-science into a trial court record, it is unclear what the impact will be in this and other environmental law cases.
Time will tell what Judge Alsup has in mind. It is possible he is looking to firm up federal nuisance laws. In which case, the information and other evidence to be submitted will have to speak to the questions of what the oil companies knew, when did they know it, and what did they do about it? Ultimately, Alsup will have to determine whether any of this jibes with federal liability laws.
Time will also inform us of the impact—if any—of the California cases in New York. Should any of the California cases find the oil companies guilty of a tortious act, the floodgates will open.
It should be noted that Judge Alsup gave the other defendant oil companies in the case time to file individual assessments of the state of climate science. Boutrous and Chevron are lead defendants and counsel. However, the other companies have not lost their identities.
IMHO, there were two clear losers in the day’s tutorial. The first was EPA Administrator Pruitt. The tutorial offered an exercise very near his much-vaunted red team/blue team TV debate on climate change. The fact that Chevron agreed with the IPCC’s findings in open court should pretty much guarantee the Administration’s continued refusal to agree with Pruitt's proposal.
The second loser may well be the coal industry. Boutrous’ having singled out coal-burning as the prime climate culprit will undoubtedly prove problematic and not just for coal producers. It will be interesting to see if the Administration is taken to task—possibly to court—for its support of the industry both domestically and internationally.
Following Trump’s logic in the case of opioids: if a drug dealer should receive the death penalty for selling to addicts on the street, what should the punishment be for selling coal to India and China in the market?
I’m just asking. It's what I do.
Here ends the first part of the Oyez, Oyez article. In the second part, I’ll be discussing ExxonMobil’s decision to turn the tables on some of the cities by accusing them of investor fraud and the growing number of cases already inspired by Juliana.
Click on www.civilnotion.com in a day or two for the next installment.
Lead photo courtesy of https://unsplash.com/@wilsea
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.