Part 1 of Oyez, Oyez spoke of the emergence of a growing number of climate lawsuits looking to forge new foundations upon which to combat global warming. The lawsuits cited took two very different directions. The youthful plaintiffs in the Juliana case are seeking to establish both the federal government’s obligation to hold the nation’s natural resources in a public trust and their constitutional right to a healthy environment.
The cities and counties suing Chevron, ExxonMobil and other of the major oil companies are taking a primarily civil approach alleging the defendants of tortuous acts against their communities and seeking potentially billions of dollars in restitution. In both categories of cases, climate-science is as much on trial as the actions of the defendants.
Part 1 ended with a recap of the climate change tutorial given Judge Alsup as part of the case now pending in the U.S. District Court for the Northern District of California. In the tutorial, the lead defense attorney in the case admitted the UN’s Intergovernmental Panel on Climate Change (IPCC) is spot on regarding the causes and consequences of global warming. Lawyer Boutrous, however, denied that the oil companies could be held liable.
Part 2 expands discussion of both case categories, starting with a Plan B defense by ExxonMobil to turn the liability tables on selected cities and counties by accusing them of lying to bond-holders about the soundness of the economic future facing their facing because of climate change. ExxonMobil’s request of the state court is less like a direct legal defense to the California and New York tort claims and more like an announcement that they are ready to rumble!
Part 2 continues with a review of several suits by youthful plaintiffs following in the footsteps of the Juliana case in the U.S. and abroad. The legal actions in both Parts 1 and 2 speak to the unsettled nature of climate-law and the expanding role of climate-science.
The growing number of legal cases is the result of the failure of the legislative and executive branches to craft a stable framework of environmental protections based upon the overwhelming preponderance of scientific research that even the oil companies have come to accept. 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. Even before these cases are finally decided, their records can contribute to the debate now occurring in the court of public opinion. If the admissions made during the court tutorial are any indication, it appears that some deniers will be more honest about the nature of climate science in a court of law than they have shown themselves to be behind closed doors in meetings with members of Congress and the Administration.
Tit for tat—oil interests accuse municipal governments of defrauding investors
ExxonMobil is not taking the nuisance suits lying down. Earlier this year the oil giant filed a petition in the District Court of Tarrant County, Texas for permission to take pre-suit depositions. The information ExxonMobil hopes to get is proof that the states, cities, and counties filing nuisance cases are abusing the legal process, engaging in a civil conspiracy and violating the company’s First Amendment [of the U.S. Constitution] right to participate in the national dialogue about climate change and climate policy.
In its own words, ExxonMobil describes the efforts of some state attorneys general as:
A collection of special interests and opportunistic politicians…abusing law enforcement authority and legal process to impose their viewpoint on climate change. This conspiracy emerged out of frustration in New York, Massachusetts, and California with voters in other parts of the country and with the federal government for failing to adopt the preferred policies on climate change…rather than focusing their efforts in the marketplace…and adopting a strategy of persuasion
ExxonMobil finds itself directly in that conspiracy’s crosshairs. Even though it has long acknowledged the risks presented by climate change, supported the Paris climate accords, and back a revenue-neutral carbon tax, ExxonMobil has nevertheless been targeted by state and local governments for pretextual investigation and litigation intended to cleanse the public square of alternative viewpoints.
ExxonMobil is accusing these jurisdictions of much more than political conspiracy. The company is alleging that these state and local governments of investor fraud by not telling prospective bond purchasers of the significant risks, e.g., loss of property due to rising sea levels, increased infrastructure costs, etc., these jurisdictions face because of climate change.
The oil company cites as the source of the fraud the irreconcilable conflict between what these municipal governments alleged in their respective complaints and what they disclosed to investors in their bond offerings indicates that the allegations in the complaints are not honestly held. Although ExxonMobil has asked the Texas court for permission to depose the government officials in anticipation of a possible lawsuit, the Competitive Enterprise Institute (CEI) has filed a petition with the U.S. Securities and Exchange Commission urging it to investigate the cities and counties suing Exxon for bond fraud.
CEI claims it has moved against the municipal governments independent of ExxonMobil, i.e., based on its own research. However, the language in the CEI petition mirrors that of Exxon’s. Both, for instance, cite Santa Cruz County’s claims in court that it will face a 98 percent chance of a ‘devastating three-foot-flood by 2050,’ an assertion not included in the county’s bond prospectus.
It would not be surprising to discover some degree—likely greater than lesser—of coordination between ExxonMobil, CEI, and a host of other potential allies, including coal companies and other conservative think tanks. As with defender suits, battle lines are being drawn.
The more significant danger in all of this is the possibility of a large number of cases and conflicting legal rulings that can easily serve to delay any final decisions for a decade or more. As mentioned in Part 1, the courts are limited in what they can do and how quickly they can do it—even if all accept that climate change is occurring mainly because of human activities.
Children everywhere are asking the courts for help
The Juliana case has inspired other lawsuits in the U.S. and abroad. In November 2017 a suit on behalf of the Clean Air Council (Pennsylvania) and two children was filed in the U.S. District Court for the Eastern District of Pennsylvania. Although inspired by the Oregon case, Clean Air Council et al. v Donald Trump et al. targets the Trump administration’s unwinding the Obama administration regulations, i.e., Clean Power Plan (CPP), and other existing environmental protections in contravention of the preponderance of scientific data.
According to the complaint:
The Pennsylvania plaintiffs, like those in the Juliana case, are claiming a constitutional right to a sustainable environment and asking the court to apply the public trust doctrine. Unlike the Oregon case, the Clean Air Council plaintiffs have narrowed their requested relief to the court’s prohibiting the federal government from promulgating any rollbacks that increase the life-threatening effects of climate change based on junk science. (emphasis added) In the alternative, plaintiffs are asking for any other relief the Court would deem just and proper.
Sixteen Alaskan youth have filed a case (Sinnok v. Alaska) in state court against the Alaska Department of Environmental Conservation against Governor Walker and other state decisionmakers alleging:
…violations of Plaintiffs’ due process, equal protection, and Public Trust rights under the Alaska Constitution arising from Defendants’ knowing, historic, and ongoing causation of and contributions to the current climate crisis, and the abrogation of their duty to protect the atmosphere, climate system, waters, atmosphere, fish, wildlife and other crucial natural resources from the effects of greenhouse gas pollution and secure a future for Plaintiffs and Alaska’s children. (emphasis added)
The youths’ petition to DEC asked it to craft a new set of regulations that would minimally regulate stationary and mobile sources of CO2 emissions and the extraction of fossil fuels within the State to ensure that Alaska reduces its total in boundary and consumption CO2 emissions to at least 85% below 1990 levels by 2050. The petition also requested the Department to institute a series of administrative reporting actions consistent with the overall purpose of the regulations to monitor and maintain safe levels of greenhouse gas emissions (GHGs).
The Department denied the request for a variety of reasons including inadequate staff resources and the judgment that it lacked the legal authority to promulgate the proposed rule(s), particularly ones more stringent than existing federal regulations.
The Department also considered the breadth of the request relative to other state and federal jurisdictions:
The extent of emission reductions proposed in the petition would have significant consequences for employment, resource development, power generation, health, culture, and other economic and social interests within the state. In sum, there are both practical and legal hurdles to DEC carrying out the petition’s requests and meeting the petition’s climate protection goals, particularly in the absence of a larger international or national effort to reduce greenhouse gas emissions.
DEC Commissioner Hartig did acknowledge the importance and impact of global warming and invited the youth petitioners to participate in the on-going stakeholder dialogue.
Aji P. v. State of Washington was filed against Governor Inslee on behalf of 13 young people seeking an order requiring the State to develop and implement a comprehensive Climate Recovery Plan targeted to achieving Washington’s obligation to stabilize the climate system and protect the vital natural resources on which plaintiffs and future generations will depend on. The plaintiffs are being represented by the lawyers at Our Children’s Trust.
The complaint follows the arguments in the Juliana and seeking to establish a state constitutional right to a habitable environment. As in the other youth cases, the age of the plaintiffs speaks to the cumulative harms they are likely to encounter throughout the course of their lifetimes.
The requested Climate Recovery Plan is based upon a finding by the plaintiffs’ experts that it is feasible to transition all of Washington’s energy systems (for electricity, transportation, heating/cooling, and industry) to a 100% renewable portfolio to achieve a 96% reduction in carbon dioxide emissions by 2050, in line with what scientists say is necessary to stabilize the climate system. Should the case go to trial, the state will undoubtedly call a slate of its experts to contest the feasibility of a full-on renewable energy economy.
Governor Inslee is a recognized climate defender and an outspoken critic of the Trump administration’s energy and environmental policies. He has tried twice to get the state to pass a first-in-the-nation carbon tax without success. Although unlikely to resent being named as the defendant in the Aji P., he is undoubtedly wondering—as are the chief executives in Pennsylvania and Alaska—how the state legislature would respond and pay for a court-ordered climate plan of the magnitude the plaintiffs are asking.
Juliana is even inspiring others outside the U.S. to seek environmental protection from the court. In the case of Portugal, the court involved is outside the country and rules on human rights violations throughout Europe. The Global Legal Action Network (GLAN), a London-based organization, has taken up the cause of six Portuguese children who watched their neighborhood consumed by wildfires in the Summer of 2017. The conflagration also claimed the lives of 60 people.
GLAN believes it in the best interest of the children to move against all 47 signatories to the European Convention on Human Rights. According to its website, GLAN will be taking the case to the European Court of Human Rights in Strasbourg, France later this year.
GLAN wants the Court to order all 47 countries to cut their GHG emissions significantly and
to keep most of their existing fossil fuel reserves where they belong – in the ground. How big a cut in emissions is to be worked out on the basis of climate science, according to GLAN’s legal officer, Gerry Liston.
Before the organization can ask the Court anything, however, it needs to raise the funds necessary to cover the costs of litigation. To this end, it has launched a crowdfunding campaign.
GLAN raised £27,496 to begin assembling the case. The group is now hoping to reach its “stretch target” of £100,000 which will enable its lawyers and experts to prepare for what will be a very complicated case and to ensure the right type of publicity around the case.
The legal strategy of the organization is unprecedented. The general rule is that plaintiffs must exhaust all available domestic remedies before approaching the European Court of Human Rights. According to Liston, it is impractical to pursue legal proceedings in 47 countries. Whether the Court sees it the same way is another matter.
A court in The Hague has already ordered the Dutch government to cut GHG emissions a minimum of 25 percent by 2020. The 2015 case was the first climate liability suit brought under human rights and tort law. No similar decisions have been made by a European court since. It is hoped that even if the Portugal case doesn’t result in an order covering the 47 countries that it will promote more legal actions.
A lower court in Colombia has ruled against a group of 25 young plaintiffs between the ages of seven and 26. The group sued several organizations within the Colombian national government as well as municipalities and private corporations.
The complaint alleged that climate change along with the government's failure to reduce deforestation and ensure compliance with a target for zero-net deforestation in the Colombian Amazon by the year 2020, (as agreed under the Paris Agreement and the National Development Plan 2014-2018), threatens plaintiffs’ fundamental rights. The decision was appealed on February 16, 2018.
All of the reported cases in this series face their own set of obstacles—legal and practical. Even should the plaintiffs in Pennsylvania, Washington and Alaska prevail, questions of financial capacity and political will would need to be answered before orders of the courts could be carried out.
There are far more questions than answers in the current crop of environmental lawsuits. What if Chevron, ExxonMobil and other of the other oil majors were found liable for the damages done to San Francisco, New York City and other communities?
Could these companies pay the piper and remain in business? Would the prospect of being held liable cause them to pressure the politicians into finally rising above partisanship and putting in place the stable and measured programs and policies needed to combat global warming?
Whether courts can provide society the needed environmental protections to combat climate change in an effective and timely manner remains a matter of speculation. Not a matter of speculation is the expanding role the courts are being asked to play and will continue to be asked for at least as long as political leaders are allowed by voters to deny reality.
One is left wondering how long President Trump and his jolly troupe of climate deniers will continue to deny the scientific evidence being introduced into today’s lawsuits. Given Chevron’s acceptance of the IPCC’s findings on the causes and consequences of climate change, Pruitt’s intention to reduce further the role of science in EPA’s rulemaking is rather remarkable. Beyond it’s being ill-advised on a societal scale, the Administrator’s dedication to the denier’s creed ensures an ever-expanding docket of legal cases.
Let’s hope that recent and future lawsuits will continue to call deniers to the witness stand to swear in a court of law that climate-science remains unsettled at the risk of their being held in contempt—if not by the judge then by a jury of voters.
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.