Lawsuits seek coverage of adaptation costs, examine path of deception by oil firms

By Dana Drugmand, Climate Liability News, 18 Dec 2017

When the counties of Marin and San Mateo, along with the City of Imperial Beach, filed lawsuits against more than three dozen fossil fuel companies over the impacts of climate change, they jumped to the forefront of a movement to turn to the courts for climate relief. They were followed quickly by separate suits from the cities of San Francisco and Oakland, but while the three communities may be smaller than their big city neighbors, their lawsuits steer a decidedly wider course.

Their suits, led by a law firm that specializes in taking on big polluters—Sher Edling LLP —cast a wide net, targeting 37 of the largest fossil fuel companies such as ExxonMobil, BP, Chevron, Shell, Peabody Energy and Arch Coal. They allege a laundry list of complaints, from public nuisance and trespass to product liability claims, and ask for punitive damages as well as covering real damages.

The suits by San Francisco and Oakland, led by the city’s attorneys but also guided by another firm dedicated to taking on large corporations over environmental violations, Hagens Berman, target only five of the largest companies. They limit the claims solely to public nuisance and ask for no punitive damages, only money to fund climate adaptation projects. The strategy, designed specifically to keep the case in state court, follows a model used in California lead paint litigation that successfully used public nuisance to win a billion-dollar abatement verdict, a decision currently under appeal.

Plaintiffs in both cases filed their complaints in California Superior Court and defendants then removed them to federal court in the Northern District of California. Plaintiffs countered with motions to have their cases remanded to state court. Previous climate liability cases have failed in federal court, so winning the venue battle could be  crucial.

In addition to alleging public nuisance and trespass, Sher Edling’s complaints include product liability-based claims such as failure to warn and design defect. This is where, some way, they start to parallel claims brought against the tobacco industry for its harmful products and deceptive marketing. In an article published in July when the suits were filed, Yale law professor Douglas A. Kysar argued, “the fossil fuel industry’s tobacco moment arrived.”

Those arguments will be heard early in 2018—Jan. 25 for the San Francisco and Oakland case and sometime in February for the Marin, San Mateo and Imperial Beach suits.

This jurisdictional battle is just the beginning. “Clearly we’re in for a fight,” said Marin County Counsel Brian Washington. But he added that California’s public nuisance law is broader than that in many other states, which should help the plaintiffs. “We think we have a good chance of ultimately succeeding.”

How the courts respond to the two distinct strategies will clearly influence how potential climate liability litigants approach the issue going forward. They seem to form an ideal set of test cases.

The Three Communities’ Cases

Imperial Beach, which sits just south of San Diego, faces a triple threat from flooding. With the Tijuana River Estuary to the south, San Diego Bay to the north, and the Pacific Ocean to the west, there is little space to escape from rising water and storm surge. “We have water coming at us,” said Imperial Beach Mayor Serge Dedina.

Much further north, the counties of San Mateo and Marin face a similar threat of inundation with sea level rise. San Mateo County is the most vulnerable county in the whole state to sea level rise, with the much of the eastern edge – including the San Francisco airport – built right into the Bay on fragile bay fill material. According to County Supervisor Dave Pine, San Mateo already experiences severe flooding during king tides and accelerated erosion of the coastal bluffs during storm events. The same goes for nearby Marin County.

“Sea level rise is here and we’re experiencing it first hand in Marin, as roadways continually flood with king tides and storms,” said Marin County Supervisor Kate Sears.

The three communities have been leaders in assessing their vulnerability and preparing for the impacts of sea level rise, making them ideal civic plaintiffs.

“We’re seeing the real impacts of sea level rise here in Marin County. That’s why we thought it was important to act now,” said County Supervisor Damon Connolly.

“San Mateo County has made it a priority to address climate change, and this lawsuit is a key component of that effort,” said Pine. He said his county is looking at long-term flood-associated damage costs of over $30 billion by 2100. “The costs of adaptation are in the billions of dollars, and the fossil fuel companies that made [climate consequences] happen should pay for this adaptation,” he said.

In Imperial Beach, dealing with erosion and sea level rise on just the beachfront side is expected to cost at least $100 million. “That’s just a partial cost,” said Mayor Dedina. As a majority low-income community with the highest poverty rate in San Diego County, shouldering this expense will be especially difficult. “This is a cost that we don’t have the money to incur, and will take away from the services we are already trying to provide for our lower-income residents,” said Dedina. “Ultimately these [fossil fuel] companies had a significant impact in causing climate change,” he added. “Therefore, they should help pay for the costs.”

According to the plaintiffs’ complaint, the 37 companies are accountable for roughly 20 percent of all industrial carbon and methane pollution from 1965 to 2015. This claim is based on peer-reviewed research and calculations using the companies’ own data. In addition to attributing greenhouse gas emissions to the defendants, the complaint points out that these companies were long aware that burning fossil fuels endangers the climate and purposely deceived the public about this risk while protecting their own assets.

Determining the portion of emissions resulting from the operations of the major fossil fuel companies has been undertaken by Climate Accountability Institute founder Richard Heede and others. Heede’s 2013 work identified the percentage of global warming tied to the Carbon Majors and a September 2017 study found that nearly half of modern global warming – including almost a third of global sea level rise – is linked to 90 companies.  

Sher Edling LLP, led by partners Vic Sher and Matt Edling, has successfully prosecuted cases against some of the same companies targeted in these lawsuits, as has Hagens Berman.  The principals in both firms were involved in litigation over MBTE—which was found to be a groundwater contaminant—including a case resulting in a verdict of $104.7 million for the City of New York against ExxonMobil.

“It is science, and the companies’ own documents, that led to the determination as to which companies are responsible for a substantial amount of the sea level rise that we complain about,” said Edling. But this attribution, he cautioned, does not account for their role in promoting a campaign of deception. “This makes their responsibility greater than just a percent of their emissions.”

The deception was detailed in investigative reporting revealing that these companies, notably ExxonMobil, knew for decades about the consequences of fossil fuels while they funded campaigns to discredit the science.

“They borrowed the same tactic from the tobacco industry to essentially obfuscate the issue by promoting ‘fake science’ disputing that climate change was caused by human activities and fossil fuels particularly,” said San Mateo County Supervisor Don Horsley. “It really has to do with their behavior,” he added. “That is the rationale for bringing the lawsuit, holding them accountable for what they knew their product was doing.”

Climate Liability News contacted several of the defendant companies and none responded to a request for comment.

Different Tactics, Same Reasoning: “The Bill Has Come Due”

The Marin, San Mateo and Imperial Beach lawsuit invokes public nuisance, private nuisance, and negligence including failure to warn, strict liability for failure to warn and design defect, and finally trespass. The San Francisco and Oakland suits, in contrast, have a comparatively tighter focus, with only public nuisance alleged.

There is logic to casting a broader net. “The San Mateo case has alternative theories of liability, which will keep the case alive in the event that one or more of the claims get knocked down,” said climate law expert and Vermont Law School Professor Patrick Parenteau. “For that reason, although it’s more complicated to litigate, I think it stands a better chance at surviving.”

The lawyers behind the San Francisco and Oakland cases, however, believe a narrow target has its advantages.

“We are sympathetic to our sister communities pursuing those cases,” John Coté, communications director in the San Francisco City Attorney’s office, said in a statement. “These fossil fuel companies have harmed all of us.  Our case is a narrow, straightforward, public nuisance case. We seek only an abatement fund, on behalf of the people only, and only for the purpose of addressing the public nuisance presented by global warming. Our goal is to present a clear and direct case to the court, and to establish an abatement fund as soon as possible. San Francisco and Oakland are facing very real harms that need to be remedied. The five named defendants in our suit are the biggest contributors to those harms, and the bill has come due.” 

David Bookbinder, chief counsel at the Niskanen Center, writes that the more complex, “kitchen sink” approach of the three communities’ cases  “unthinkingly plays into the fossil fuel industry’s hands.” He notes that the San Francisco/Oakland strategy wisely mirrors that of the California lead paint litigation, even though that is a case with relatively clear-cut harms that has nonetheless been stuck in the judicial appeal process for 17 years.

While different in scope and strategy, both set of cases are potentially groundbreaking. But whether other cities, counties or states follow suit and bring similar cases remains to be seen. “It would not surprise me if there are more lawsuits brought by other affected communities,” said Edling. “The onset of climate-related injuries, and the substantial costs associated with them, are now a fact of life.”

“This is the issue of financial impact of our time,” added Sher. “The question is going to be who pays for it – the victims, or the companies who knew what they were doing and didn’t care.”

Yale Law School

Fossil Fuel Industry’s ‘Tobacco Moment’ Has Arrived

By Doug Kysar 

July 28, 2017

This article appeared in Law360

Over a period of 40 years, tobacco companies in the United States faced some 300 lawsuits challenging the lethal nature of their products without ever losing a single case or surrendering any amount of compensation through settlement. Then, in the 1990s, suing on behalf of the state of Minnesota, then-Attorney General Skip Humphrey alleged a conspiracy on the part of tobacco defendants to defraud consumers about the hazards of smoking, to suppress the development of safer alternatives to their products, and to target children through unlawful and manipulative marketing practices.

Before trial, Minnesota requested some 40,000 pages of documents from the tobacco defendants. When the companies’ efforts to resist the request were denied by the presiding judge, they instead tried to bury Minnesota by producing an avalanche of 35 million pages of documents.

The plan backfired: The documents were made publicly available, became the basis of hundreds of academic articles, government reports and media exposes, and helped dramatically shift the politics of tobacco control by revealing the industry to be deceptive and callous.

Last week, the fossil fuel industry’s tobacco moment arrived. In parallel lawsuits filed against several of the largest oil, gas and coal producers in the world, three California government parties — San Mateo County, Marin County and the City of Imperial Beach — alleged a vast “campaign of disinformation” by the industry to preserve the market for products they know endanger the very ability of the planet to sustain human civilization.

According to the complaint, for decades now, these companies have enriched themselves with trillions of dollars in profits while knowingly contributing to a global environmental threat that their own internal reports describe as “severe” (1968), “dramatic” (1979), and “catastrophic … for a substantial fraction of the earth’s population” (1981). With considerable force, the California plaintiffs argue that the industry should help pay for the massive expense and harm they now face due to sea level rise and other consequences of climate change.

Climate change lawsuits have been filed before. Most notably, in 2008 a group of Inupiat Eskimos from Kivalina, Alaska, sought compensation from major fossil fuel companies for the cost of relocating their village which had become unsafe due to loss of sea ice, increased storm surge and erosion. In addition to challenging the industry’s contributions to climate change as a public nuisance, the Kivalina lawsuit also alleged a conspiracy among defendants to distort public understanding of climate change.

The lawsuits filed last week are different than earlier efforts for three important reasons. First, unlike the Kivalina plaintiffs who had to rely on relatively sparse documentation of their claims, the California plaintiffs’ complaint is supported by a voluminous record. Much of the conduct cited in the complaint has been unearthed through investigative efforts by the Columbia School of Journalism, the Los Angeles Times, and other media and academic institutions. This evidence was not available at the time earlier climate change lawsuits were brought.

Second, the suit is being filed under California state law which — unlike the claims dismissed in the Kivalina case — has not been displaced by the application of the federal Clean Air Act to greenhouse gases. California courts have a long and successful history of grappling with complex environmental and health problems using bedrock principles of tort law. In fact, a powerful precedent for the suit will be the effort by 10 California cities and counties to utilize public nuisance doctrine against another deceitful and harmful group of defendants, the lead paint industry. That lawsuit, which is currently being appealed, resulted in a $1 billion dollar verdict against three paint manufacturers in 2014.

Third, the complaint articulates a compelling — actually, jaw-dropping — narrative. The complaint alleges that decades ago, the fossil fuel industry reached an informed, sober internal perspective that its products were contributing to a “great and urgent” (1979) global environmental threat. Indeed, one Exxon scientific report shared with top management in 1978 observed that “man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategy might become critical.

At least initially, the industry seems to have responded to its knowledge of climate change reasonably, by investing in further science, exploring alternative energy sources, and considering the long-term viability of a fossil fuel extraction business model in light of environmental repercussions.

But then the cynical strategy of the tobacco industry took hold. Like tobacco, the fossil fuel industry embarked on a deliberate campaign to manufacture and perpetuate uncertainty regarding the harmfulness of its products. A strategy document for a communications campaign by the American Petroleum Institute bluntly identified a goal of turning climate change into a “non-issue,” noting that “victory will be achieved when … uncertainties in climate science become part of the ‘conventional wisdom.’”

Tellingly, the industry utilized accurate climate science internally when undertaking its own infrastructure planning — for instance, by raising offshore drilling platforms to take account of projected sea level rise. But to the public and government officials the industry claimed that climate science was too uncertain to support regulatory controls on greenhouse gas emissions.

Critics will no doubt argue that courts are not the right institutions to sort out a complex global problem like climate change. In a certain sense, they are right: Courts are ill-equipped to solve climate change as a policy problem.

But the lawsuits brought by the California plaintiffs are not asking courts to solve climate change. The lawsuits merely seek compensation for climate-related expenses and injuries the plaintiffs and their residents must bear. A substantial portion of those harms are directly attributable to the wrongful conduct of the fossil fuel industry.

The moment for climate justice has arrived.

Douglas A. Kysar is Joseph M. Field ’55 professor of law at Yale University. His teaching and research areas include environmental law, torts and products liability. He has written widely about the role of courts in responding to climate change.