Climate Lawsuits Face Stiff Headwinds

Multiple state and local governments are trying to sue the fossil-fuel industry, but they haven't had much luck.

This 2011 photo shows the Perdido oil platform, located 200 miles south of Galveston, Texas, operated by Shell Oil Co. and owned by Shell, Chevron, and British Petroleum.
AP Photo/Jon Fahey
Aug. 7, 2018, 8 p.m.

A host of climate-change lawsuits are trying to fight through inclement conditions.

Judges in New York and California have recently tossed cases filed by some of the largest U.S. cities. And a relatively routine Supreme Court filing in late July expressed concern about the “striking” breadth of an Oregon suit that aims to compel greenhouse-gas regulation.

But the fossil-fuel industry’s legal opponents are not shrinking away. In fact, municipalities, activist groups, and allied lawyers are piling more cases onto the stack already proceeding across the country, arguing big oil, akin to big tobacco, kept information secret on the ill effects of the product it peddles.

The city of Baltimore is now pushing a state circuit court to compel a range of fossil-fuel companies to pony up cash for alleged damages linked to carbon emissions.

That suit, filed in July and now removed to a federal court by the defendants, came just a day after a federal judge tossed a New York City suit that also sought restitution. In June, a federal judge in California tossed suits filed by San Francisco and Oakland.

“The two federal judges, we think, just got it all wrong,” Baltimore Solicitor Andre Davis, a former jurist appointed to federal positions by Presidents Clinton and Obama, told National Journal. “We’re counting on judges, both state and federal judges, going forward, to scrutinize those two opinions, the New York opinion and California opinion, and disagree with them.”

Davis is seeking damages relating to sea-level rise, extreme heat, and flooding. His suit targets nearly 30 U.S. fossil-fuel companies, as well as British Petroleum and Royal Dutch Shell. BP Products North America, Inc. and a set of Crown Central companies are defendants based in Baltimore.

Average global temperatures for 2017 were the third-warmest in recorded history, according to the National Oceanic and Atmospheric Administration. The previous year saw the highest temperatures in NOAA’s 138 years of climate monitoring, followed by 2015. Most scientists say those warmer temperatures fuel global-ice-cap melting, which in turn elevates sea level, leading to coastal damages and decreased property value.

Still, the legal outlook for these suits is bleak.

“Mostly activist groups, and some [municipal] governments, have been trying to bring common-law claims to force judicial regulation of carbon-dioxide emissions for 15 years now, and every single case has gone down in flames,” Andrew Grossman, a partner at Baker & Hostetler LLP and outspoken critic of climate suits, told National Journal. “At this point, the activist groups and municipalities bringing these cases are scraping the bottom of the barrel.”

Grossman represents the Competitive Enterprise Institute and one of that think tank’s scholars, Rand Simberg, in a years-long defamation suit launched by climatologist Michael Mann.

A 2007 landmark Supreme Court decision in Massachusetts v. Environmental Protection Agency determined that the EPA has the authority to regulate greenhouse gases as air pollutants under the Clean Air Act. That ruling paved the way for the Obama-era Clean Power Plan, which the Supreme Court ultimately stayed and the Trump administration is seeking to repeal. But so far no litigation has awarded damages to plaintiffs.

Still, the Baltimore solicitor joins public officials from Rhode Island to Boulder County, Colo., to Richmond, Calif., in ongoing bids to force restitution. New York City and San Francisco, along with Oakland, are appealing their recent setbacks. In early July, Rhode Island also became the first state to sue oil companies over climate change.

But Davis is staring down a threat that looms over fellow plaintiffs: a judge’s potential ruling that restitution cases belong in federal court, where the challenge appears far more daunting.

The Supreme Court, in a 2011 case, American Electric Power Co. v. Connecticut, unanimously ruled that fossil-fuel companies cannot be sued over greenhouse-gas emissions under federal common law, which includes public-nuisance and due-process arguments raised by many plaintiffs. The nation’s top court said Congress and the EPA have the authority to enact regulations.

Defendants regularly shoot climate suits to federal court by arguing federal law preempts state law on the climate front. At that point, a judge is able to remand the case, potentially field it, or dismiss it—as happened in the San Francisco case.

“This case is about global emissions,” Chevron attorneys argued in a July 31 filing for the Baltimore case. “Plaintiff’s claims are not limited to harms caused by fossil fuels extracted, sold, marketed, or used in Maryland. Instead, their claims depend on Defendants’ nationwide and global activities, as well as the activities of billions of fossil fuel consumers.”

Davis, meanwhile, is arguing state law paves the way for plaintiffs to seek civil damages for injury—even if the defendants acted legally.

“It was legal to sell to sell gasoline, obviously. We’re not suggesting the contrary,” he said. “We are not trying to impose some future regulatory regime on fossil fuel or fossil-fuel companies. We understand entirely that’s the federal government’s role to do something about climate change going forward.”

Fossil-fuel companies have known—for decades—far more about climate change than publicly disclosed, critics say. New York state is currently investigating Exxon Mobil Corp.’s knowledge of fossil-fuel impacts, and Attorney General Barbara Underwood accused the company in June of refusing to turn over subpoenaed documents. Massachusetts has its sights set on a similar investigation.

Baltimore is not targeting a specific figure for damages, instead seeking “reasonable, appropriate and sufficient” restitution at trial. That prospect of regulation by litigation, however, continues to stoke concern and opposition among fossil-fuel allies.

“When a court puts a price on something to award damages, that price is in and of itself a regulation because it then determines how much of something there can be,” Grossman said. “It weighs the costs and benefits, and says, in this instance, the costs outweigh the benefits, and so you’re liable.”

Despite the years of litigation already in the rearview mirror, proponents of the suits are planting a flag in the ground, vowing to continue the fight.

“We’re still in the top of the first inning. This is a long, long process,” David Bookbinder, chief counsel at the Niskanen Center, a libertarian think tank that is supporting the Colorado case, told National Journal. “There’s just going to so many cases and so many decisions. It’s just the nature of the beast.”

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