David Hasemyer on Climate Home News, Sept 15, 2020
Connecticut and Delaware have joined a growing list of states, cities and counties that have filed climate change lawsuits against the fossil fuel industry, claiming oil and gas companies knew their products caused sea level rise and stronger hurricanes and willfully misled the public about those and other dangers related to global warming.
Connecticut’s lawsuit, filed Monday, named ExxonMobil as a sole defendant, while the lawsuit filed on Friday by Delaware named 31 fossil fuel companies and trade groups. They joined Massachusetts, Rhode Island and Minnesota as states that have filed such litigation.
Former Vice President Joe Biden, who served 36 years as a senator from Delaware, cited the state’s lawsuit in a climate change address on Monday to underscore the costs of global warming and the Trump Administration’s failure to address the issue. He called Trump, who was surveying the devastation of wildfires in California, a “climate arsonist.”
“Just last week Delaware state attorney general sued 31—31—big fossil fuel companies alleging they knowingly wreaked havoc and damage on climate—our climate—damage that is plain for everyone to see but the President,” he said.
The coastal city of Charleston, South Carolina, also filed a climate lawsuit last week, joining close to 20 other cities and counties seeking to hold the fossil fuel industries liable for damages resulting from increased flooding and precipitation, droughts and intensifying storm surges, in addition to sea level rise and stronger hurricanes. The other cities include Baltimore, Oakland, San Francisco and Washington, D.C.
In Connecticut’s suit filed Monday, Attorney General William Tong sued Exxon for violating the state’s Unfair Trade Practices Act, which allows for wide-ranging claims of public and private nuisance, trespass, negligence and for violating its Consumer Fraud Act.
“ExxonMobil sold oil and gas, but it also sold lies about climate science,” Tong said when announcing the multi-billion dollar climate lawsuit against the company.
This spate of lawsuits comes after a series of recent rulings in similar cases that appear to give the advantage to states, counties and cities, legal scholars say.
The lawsuits also may send further tremors through the financial world that this summer has seen Exxon dropped from the Dow Jones Industrial Average and a U.S. Commodity Futures Trading Commission report that concluded climate change threatens U.S. financial markets, those experts say.
Connecticut Singles Out Exxon for its ‘Deceptive Record’
Unlike the other climate lawsuits confronting the oil and gas industry that sweep up the world’s largest producers, the Connecticut lawsuit singles out Exxon as the sole defendant because the company’s deceptive record is well established, Tong said in an email interview.
“ExxonMobil is a leader in the industry and has been for decades,” Tong said. “We have evidence that shows that Exxon knew from its own scientists that climate change was occurring, made a deliberate decision to deceive consumers, and then successfully implemented that plan over the course of decades.
“That’s the evidence we have, and it makes our case very straightforward.”
The climate lawsuits cite an InsideClimate News series and a later Los Angeles Times story that revealed the extent of Exxon’s knowledge about the central role of fossil fuels in causing climate change as far back as the 1970s, based on research performed by its own scientists.
“ExxonMobil’s campaign of deception has contributed to myriad negative consequences in Connecticut, including but not limited to sea level rise, flooding, drought, increases in extreme temperatures and severe storms, decreases in air quality, contamination of drinking water, increases in spread of disease, and severe economic consequences,” Connecticut’s lawsuit says.
The lawsuit seeks money to pay for defending against climate change threats, restitution for remediation costs already made, disgorgement of corporate profits, civil penalties and disclosure of all climate research.
It also calls for the creation of a climate change education fund and an immediate end to the false and misleading information that ExxonMobil has been disseminating for years.
Exxon did not respond to a request for comment.
Recent Rulings Weaken the Fossil Fuel Industry’s Defense
Although the industry will no doubt put up a strenuous fight against these lawsuits, its chances of winning them have been diminished by a series of court rulings favorable to the plaintiffs, said Richard Frank, director of the California Environmental Law & Policy Center at the University of California, Davis School of Law.
Frank cited a recent ruling by the Ninth U.S. Circuit Court of Appeals that ordered seven cases filed by local governments in California transferred from federal court to state court.
“The decision on where these cases will be heard seems to be pretty well settled,” Frank said. “The state court forum gives the advantage to the plaintiffs whereas federal judges may not have had as much sympathy for these cases.”
The first salvo in the legal war was fired in 2017 when Marin and San Mateo counties, near San Francisco, and the city of Imperial Beach, south of San Diego, filed climate lawsuits and drew national attention for daring to take on the powerful fossil fuel industry.
A ripple from the mounting number of lawsuits could be the further weakening of the oil industry’s standing in financial markets, said Pat Parenteau, a professor of environmental law at the Vermont Law School.
Parenteau said a decision by the Dow Jones Industrial Average to drop Exxon was a wakeup call to investors, as was last week’s decision by federal financial regulators to identify the cost of climate change as a factor in market stability. Their report called out the costs of wildfires, storms, droughts, flooding—and climate litigation as market stressors.
Now that the industry is potentially facing multi-billion dollar judgments, the pressure will continue to mount on these companies from financial markets to divorce from their oil-only business model, Parenteau said.
“There is going to be a verdict and it’s going to be big,” he said. “The smart money people see that and they don’t want to be holding the bag.”
The industry’s primary defense has been that climate change issues are not a matter for judicial review but rather of legislative remedy. The courts have largely disagreed, saying as a federal court of appeals did in a case filed by Baltimore, that local jurisdiction was proper. Although those rulings have given momentum to the cities and states, they still face formidable challenges by the industry.
Another possible showdown in the Supreme Court looms later this month when the court will consider whether to take on the jurisdiction question that could provide definitive guidance on the venue of these claims.
While the states, cities and counties, for the most part, want their lawsuits heard in state courts, the industry prefers the federal courts as a venue so that they can argue the Clean Air Act and other federal laws preempt any claim under state law that carbon dioxide emissions from fossil fuels cause climate change and related property damage.
‘It is Not About Stopping Climate Change. It’s About Delaware Surviving It’
Delaware’s lawsuit against 31 fossil fuel entities and trade groups claims negligent failure to warn, trespass, public nuisance and multiple violations of Delaware’s Consumer Fraud Act. It seeks monetary damages to compensate the state and punish the companies, including $10,000 per violation of the Consumer Fraud Act.
“Defendants have known for decades that climate change impacts could be catastrophic, and that only a narrow window existed to take action before the consequences would be irreversible,” Democrat Kathy Jennings, the Delaware attorney general, says in the lawsuit
The complaint, which targets such oil giants as Exxon, Chevron and Shell, and the American Petroleum Institute trade organization, argues that changes to Delaware’s environment are a “direct and proximate consequence of Defendants’ wrongful conduct,” and disproportionately affect communities of color and low-income communities.
At the heart of the lawsuit is the matter of who will pay for the mounting financial, environmental and public health costs of the climate crisis, Jennings said during a news conference announcing the lawsuit.
“It is not about stopping climate change. It’s about Delaware surviving it,” she said.
The lawsuit further blasts the industry for falsely claiming through advertising campaigns … that their businesses are substantially invested in lower carbon technologies and renewable energy sources.
“In truth, each Fossil Fuel Defendant has invested minimally in renewable energy while continuing to expand its fossil fuel production … None of Fossil Fuel Defendants’ fossil fuel products are ‘green’ or ‘clean’ because they all continue to ultimately warm the planet,” according to the lawsuit.
Shell and Chevron disputed the claims.
“These special-interest-promoted lawsuits designed to punish a few companies who lawfully deliver affordable, reliable and ever cleaner energy undermine real efforts to address the complex policy issues presented by global climate change,” Chevron spokesperson Sean Comey said in an email. “There is no evidence Chevron misled the public about climate change. Those claims are false.”
Shell spokeswoman Anna Arata said the courtroom is not the right venue to address climate change, and that change needs to come through “smart policy from government” supported by business sectors, including the fossil fuel industry, to address climate change.
“We fully support the need for society to transition to a lower-carbon future and we’re committed to playing our part by addressing our own emissions and helping customers to reduce theirs,” Arata said
API released a boilerplate response it issues in these cases. Paul G. Afonso, the American Petroleum Institute’s chief legal officer and senior vice president, said in a statement: “The record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false.”
Charleston is the First Southern City to File a Climate Lawsuit
The Charleston lawsuit seeks to hold two dozen major oil and pipeline companies accountable for climate change damages to the city. The lawsuit claims their products and the spread of misinformation about fossil fuels have caused increasing and disastrous flooding.
South Carolina’s largest city, Charleston is the first in the South to file a climate lawsuit.
Filed in the Court of Common Pleas in Charleston, the suit asks that Exxon, Chevron, Shell, BP and other companies to pay for the costs to keep the city from flooding.
“As a direct and proximate consequence of Defendants wrongful conduct described in this complaint, the environment in and around Charleston is changing, with devastating adverse impacts on the City and its residents,” according to the lawsuit, which asserts six causes of action, including public and private nuisance, strict liability and negligent failure to warn, trespass and violations of South Carolina’s Unfair Trade Practices Act.
Flooding events have increased substantially in Charleston, from around four days per year around 50 years ago to nearly 89 days per year as of 2019.
The City has incurred significant costs on capital projects to address sea level rise, including rebuilding its aging Low Battery Seawall, installing check valves to prevent tidal intrusion on the City’s storm drain system and redesigning and retrofitting its floodwater drainage system to keep up with increased flooding caused by sea level rise, including by constructing more than 8,000 feet of new drainage tunnels, according to the lawsuit.
City officials have estimated the cost of keeping up with rising sea levels at $2 billion.
Says Charleston’s lawsuit: “The City seeks to ensure that the parties who have profited from externalizing the consequences and costs of dealing with global warming and its physical, environmental, social, and economic consequences, bear the costs of those impacts on Charleston, rather than the City, taxpayers, residents, or broader segments of the public.”
ABOUT THE AUTHOR
InsideClimate News reporter David Hasemyer is co-author of the “Dilbit Disaster: Inside the Biggest Oil Spill You’ve Never Heard Of,” which won the 2013 Pulitzer Prize for National Reporting, and co-authored the 2016 Pulitzer Prize finalist series “Exxon: The Road Not Taken.” Prior to joining ICN, Hasemyer had an award-wining tenure at The San Diego Union-Tribune as an investigative reporter. Hasemyer’s newspaper work has been recognized by the Associated Press, the Society for Professional Journalists, the Society of American Business Editors and Writers. He also has been a finalist for the Gerald Loeb Award and the Robert F. Kennedy Award for Social Justice and Human Rights. He can be reached at firstname.lastname@example.org. PGP key: http://ow.ly/iEHN3089Gqg