A wave of climate change suits is invigorating a debate over tort liability.
Liberal-minded environmental groups are enthusiastically—and unsurprisingly —lining up behind the suits, filed by localities. But intellectual sparring is heating up on the other side of the political spectrum, where the knives are out among advocates of laissez-faire government.
That debate comes as fossil-fuel companies fight to fend off suits that seek billions of dollars to pay for programs put in place to counteract climate change. And the coalition behind the suits is growing.
No longer are suits hitting courts only in coastal areas with liberal leanings—nor are environmentalists the only advocates pushing the ball forward.
“We believe the manufacturers of fossil fuels have been imposing costs that they need to pay for. Otherwise, the taxpayer is the one who is taking care of adaptation costs going forward,” said Jerry Taylor, president of the Niskanen Center and a former longtime official at the libertarian Cato Institute.
“There’s a very strong right-of-center argument for why these legal actions are fundamentally about protecting property rights,” Taylor said. “If party ‘A’ harms the property of party ‘B,’ then they should pay. This is a standard polluter pays concept that conservatives have embraced in other contexts.”
Two Colorado counties, along with the city of Boulder, filed a suit against ExxonMobil and Suncor, a Canadian energy producer, last week, joining California municipalities and New York City in their bids to seek damages tied to climate adaptation. The scientific community overwhelmingly argues that greenhouse-gas emissions fuel climate change, which in turn causes coastal flooding and infrastructure damages linked to sea level rise, as well as drought and fiercer, more-frequent wildfires.
Those suits differ from ongoing legal proceedings in New York and Massachusetts, where attorneys general aim to force Exxon to produce documentation that illustrates the company’s historic understanding of the climate effects of burning fossil fuels.
The Colorado plaintiffs are seeking damages for, among other things, costs tied to wildfires, pest infestations, medical costs tied to extreme heat and more allergen exposure, physical repairs to infrastructure, and programs designed to evaluate future adaptation needs.
More municipalities and counties are likely to file similar suits in the coming months and years. But the suits—and Taylor’s line of thinking—are already hitting fiery pushback. Some critics argue that climate change is simply too amorphous to form the basis for such actions.
“What we’re talking about here is so dissimilar from the types of pollution that were addressed under common law when that was the dominant mode of adjudication,” Andrew Grossman, a partner at Baker & Hostetler LLP and adjunct scholar at Cato, said. “You’re dealing with a global pool of carbon dioxide that’s emitted into the atmosphere and is contained in the atmosphere, and so any injury that anybody suffers is not the result of one set of emissions or something like that. It’s the result of this overall phenomenon.”
The Supreme Court—in 2011’s American Electric Power Company v. Connecticut—ruled that corporations could not be held federally liable for common-law damages related to emissions of greenhouse gases. The court said the Clean Air Act, a landmark statute passed with overwhelming, bipartisan support in 1970 and amended in 1990, now supersedes tort claims.
That leaves open the opportunity potentially for litigation at the state level, despite stiff challenges there as well, according to Grossman.
Exxon didn’t respond to multiple requests for comment. A spokesman for the American Petroleum Institute, Mike Tadeo, declined to comment on the specific cases, instead touting decreases in U.S. emissions.
“The natural-gas-and-oil industry is actively addressing the complex global challenge of climate change through robust investments in technology innovation, efficiency improvements, and cleaner fuels,” Tadeo said. “While global [carbon dioxide] emissions have risen 50 percent since 1990, U.S. CO2 emissions are at 25 year lows due in large part to clean and abundant U.S. natural gas powering homes and businesses as the #1 source of U.S. electricity generation today.”
The hotly-contested Clean Power Plan, which courts and the Trump administration stalled, aimed to scale back emissions, building off the successes that Tadeo referenced. But there’s no legal option for actual restitution. The plaintiffs, and onlookers in the environmental community, therefore argue that the courts are the necessary place for tort claims.
“The courts may not be the best option to provide remedies for climate change, but right now they are the only option.” said Marco Simons, general counsel at Earth Rights International, a nonprofit that is participating in the Colorado suit. “With a problem like this, it might be better to have comprehensive legislation to address it. But there isn’t any so far. And so, in the absence of that framework, it is a perfectly appropriate role for the courts to play.”
Simons said the Colorado case is the first U.S. suit that Earth Rights is weighing in on. The group has so far sought restitution from fossil-fuel companies in South America, Africa, India, and elsewhere, Simons said.
“I’m certain that there will be more of these cases filed,” he said. “We have received interest from other communities in Colorado. I can’t go into the details of that. And we have talked with communities in other parts of the country.”
Environmental groups have proposed a carbon tax to generate revenue that could fund climate-change response and adaptation programs. But the Republican-led 115th Congress and the Trump administration stand in the way. House Majority Whip Steve Scalise, a potential House GOP leader following the retirement of Speaker Paul Ryan, introduced a measure Thursday to showcase that opposition.
“Some liberal Washington special interests continue to pursue a radical agenda that includes imposing a job-killing carbon tax, which would raise costs on everything we buy from electricity and gasoline to food and everyday household products,” Scalise said in a statement. “The resolution I’m introducing today with Congressman [Dave] McKinley would yet again put Congress on record against a carbon tax.”