New Polling Shows Voters Want to Hold Big Oil’s Feet to the Fire. Juliana implications and Maui case.

New Polling Shows Voters Want to Hold Big Oil’s Feet to the Fire (Earther) by Dharna Noor, October 13, 2020

Oil and gas companies have spent decades spewing ungodly amounts of greenhouse gases into the atmosphere, and there’s ample evidence that oil and gas companies covered up the climate-warming effects of that pollution. New polling shows that Americans want to do something about that.

national survey conducted by Data for Progress and the Justice Collaborative Institute shows strong support for a variety of measures to hold oil and gas companies accountable for their role in climate breakdown. The groups conducted an online survey of 1,107 Americans who were likely to vote, weighted to be representative of likely voters by age, gender, education, race, and voting history by party.

Of all likely voters surveyed, 59% said they’d either “strongly support” or “somewhat support” requiring fossil fuel companies to cover the costs of adaptation and mitigation to climate-fueled disasters. That includes 72% of Democrats, 56% of independents and 46% of Republicans.

“Previous polls have shown that people know that climate change is real,” Kate Chatfield, director of policy at the Justice Collaborative, said. “This polling shows people not only that climate change is real, but that they know exactly who is responsible for it, and who should pay.”Americans also showed support for holding the industry accountable in court. Fifty-four percent of likely voters, including 70% of Democrats, 47% of independent voters, and 41% of Republicans, said they would support local or state litigation against the fossil fuel industry to cover costs associated with the crisis they created.

These types of actions are already underway and could become more widespread in the coming years. The survey didn’t ask about specific cases, but suits like the one Baltimore filed against energy majors for withholding information about the dangers of using their products, which seeks damages for “property damage, economic injuries and impacts to public health,” fall into this category. Democratic presidential nominee Joe Biden said earlier this year in a primary debate that he supports lawsuits to hold fossil fuel companies accountable for damages as well. And his climate plan includes a promise to “take action against fossil fuel companies and other polluters who put profit over people and knowingly harm our environment and poison our communities’ air, land, and water, or conceal information regarding potential environmental and health risks.”

An even greater portion of respondents, 60% overall, said that they’d support their elected officials in co-signing lawsuits against governments to ensure fossil fuel firms follow regulations. Again, participants weren’t asked about any specific suits, but ongoing cases against governments of AlaskaColoradoFlorida, and several other states filed on behalf of youth plaintiffs by nonprofit Our Children’s Trust fit the bill.

“Ironically, on the one hand, there are lawsuits against the fossil fuel companies for past damages, but there are also these children’s lawsuits against the cities and states which to say, you have the power to do something about under your state law,” Chatfield said. “And there’s support for both.”

A similar portion of Americans, it seems, support direct efforts to regulate the oil and gas industry. Sixty-three percent of those polled said they’d support their governors in imposing stronger regulations on fossil fuel companies.

Some familiar trends cropped up among the data. For instance, college-educated respondents were more likely to support every single measure in the survey than their counterparts without college degrees, a pattern long seen in previous polling. Younger voters also showed stronger support for each measure than those over the age of 45, presumably because nationwide conversations about climate have grown so much in just the past decade—and, frankly, probably also because us younger folks will be around to see more climate doom than older generations. This shows where support already lies, and where the movement for accountability could still build more inroads.

The new polling doesn’t include the income levels of survey participants or the geographical breakdown of support for each accountability measure, both of which raise interesting questions. That additional information might help climate activists learn more about where they’d have success in pushing for more accountability and who the movement still needs to bring on board.

But overall, the data makes it clear that many Americans know the oil and gas industry has done them—and the whole planet—dirty, and that they don’t want to let them get away with it anymore.

“Political actors sometimes…seem to think it’s enough to merely say they know that climate change is real, and they’ll say, ‘boy, we really ought to do something about this,’” said Chatfield. “But that’s clearly not enough, and people know it. There are real, concrete steps that can be taken, and voters support them.”


What Amy Coney Barrett Would Mean for the Youth Climate Case

By Dharna Noor, Oct 13, 2020

On Monday, the Senate Judiciary Committee kicked off its confirmation hearings for Judge Amy Coney Barrett, President Trump’s nominee to replace the late Justice Ruth Bader Ginsburg. If she’s confirmed, she’ll tip the scale of the Supreme Court to a 6-3 conservative majority, leaving the future of many important cases hanging in the balance, climate cases included.

Among those could be Juliana v. U.S., the landmark lawsuit that 21 youth plaintiffs waged against the U.S. government beginning in 2015 for taking insufficient action on climate change. Earlier this year, the Ninth Circuit Court of Appeals “reluctantly” tossed the case out. The plaintiffs and their lawyers are now waiting to see if the full appeals court will uphold the decision to scrap the suit.

“We anticipate that in the next month or two, we’ll see a decision made by the Ninth Circuit,” Julie Olsen, chief legal counsel at Our Children’s Trust, who is leading the Juliana lawsuit, said. “If they deny the petition then the next step for the plaintiffs would be to petition the Supreme Court for review of the case.”

If the case heads to the high court, whether or not Barrett’s confirmation is pushed through could impact its future. Barrett doesn’t have an extensive environmental record to draw from.

At its core, Juliana v. U.S. is not an environmental lawsuit but a constitutional one. Unlike major environmental cases like Massachusetts vs. EPA (a case focused on whether the agency could regulate greenhouse gases under the Clean Air Act) or cities’ legal efforts to hold fossil fuel producers liable for climate damages, Juliana focuses on how the government’s inaction on climate change has “violated the youngest generation’s constitutional rights to life, liberty, and property.” Olsen said this premise gives the case strength.

“We have framed the case that way so it could appeal to a broad number of judges and justices,” she said.

But Barrett’s approach to constitutional law doesn’t necessarily look like a promising source of support for the youth plaintiffs. Barrett clerked under the late, notoriously staunch conservative Supreme Court Justice Antonin Scalia. Like her former boss, the nominee is a strict constitutionalist—she takes a narrow view of the scope of the document in order to deny people rights based on her own worldview. But the Juliana case hinges on judges’ willingness to interpret climate inaction as an affront to the rights the Constitution affords.

“She’s written that rather than following precedent, justices should really just follow their own personal view of how they read the Constitution,” Benjamin Driscoll, head of the judiciary program at the League of Conservation Voters, said. “Particularly when it comes to a case like Juliana, which involves a protection that hasn’t otherwise been recognized in the courts, that’s very concerning.”

Also troubling to Driscoll is Barrett’s record on the issue of “standing.” In legal terms, who has “standing” essentially determines who has the right to sue. To have this right, plaintiffs must demonstrate that their case will address an injury or harm that they’ve suffered, that the defendant in their suit had some role in perpetrating that harm, and that the lawsuit could repair that damage.

In one 2019 case, Barrett denied standing to a woman challenging illegal debt collection practices by saying the plaintiff failed to show injury—even though she had personally been affected. In another case, Barrett denied standing to an applicant to a job who met the experience requirement but was denied employment due to their age. Barrett supported the argument that job applicants aren’t protected under employee discrimination protections, again taking a narrow reading of the legal language.

Even more pertinently, Barrett dismissed a case earlier this year about public parks in Chicago, finding that environmental organizers lacked the standing to sue the city over a construction project slated for a local park that they found would inhibit their inalienable rights to the use of public resources—a doctrine known as “public trust.”

“She ruled against the party by basically saying that they didn’t prove their connection between a harm to the environment and the harm to themselves,” Driscoll said.

In that opinion, Barrett claimed that the public trust doctrine is a matter of state law, and one that can only be applied to some particular federal lands, not to people.

“The Juliana plaintiffs argue that the public trust doctrine is also a matter of federal law, and that it applies to the global atmosphere,” Michael Burger, executive director at Columbia University’s Sabin Center for Climate Change Law, wrote in an email. Addressing the Chicago case, he said “the opinion makes it quite clear she would likely vote in favor of dismissal.”

Despite these stiff headwinds, Olsen said she still had hope for a positive outcome if Barrett is nominated and the case goes to the high court.

“There’s no question that the founders of our nation intended for the very foundations of life, to be part of our unalienable rights, and they very much understood that the air, the water, the land, the climate, were the foundations of liberty,” she said. “I have no doubt that judges will find have to find that those are foundational to our democracy,” she added optimistically.

Burger wasn’t so sure, but he said that whether or not the plaintiffs prevail in court, their case has accomplished something remarkable: changing how people think about legally protecting the climate.

“The youth plaintiffs in Juliana broke through the techno-wonkery of climate policy and made clear that climate change is an existential crisis that directly harms them, as individuals, and their personal liberty,” he said. “This case changed the game.”


Maui Has Begun the Process of Managed Retreat. It Wants Big Oil to Pay the Cost of Sea Level Rise.

The county in Hawaii joins a long line of cities, counties and states suing the fossil fuel industry for damages related to climate change.

David Hasemyer in Climate Home News OCT 14, 2020

Maui. Credit: Andre Seale/VW PICS/Universal Images Group via Getty Images
A lawsuit in Maui alleges that Big Oil hid the risks of their products on the climate and should be held responsible for the costs of sea level rise. Credit: Andre Seale/VW PICS/Universal Images Group via Getty Images

With nearly 300 miles of coastline, the Hawaiian islands that make up Maui County face the threat of sea level rise from all sides. It’s that assault that has formed the foundation of a lawsuit Maui filed this week against 20 fossil fuel companies seeking compensation for the rising costs of climate change.

The lawsuit alleges that the companies, including ExxonMobil, Chevron, Shell and ConocoPhillips, knew their products produced warming greenhouse gases that threatened the planet but hid those dangers from Maui’s people and businesses to maximize corporate profits.

Defendants have known for more than 50 years that greenhouse gas pollution from their fossil fuel products would have significant adverse impacts on the Earth’s climate and sea levels,” the lawsuit said. “Instead of warning of those known consequences …  defendants concealed the dangers, promoted false and misleading information, sought to undermine public support for greenhouse gas regulation, and engaged in massive campaigns to promote the ever-increasing use of their products at ever-greater volumes.”

Roadways, parks, infrastructure and buildings that hug the coastline are vulnerable to billions of dollars in damages from sea level rise caused by climate change, the lawsuit said. 

Some of Maui’s most scenic and iconic highways are at risk, including a stretch of Honoapiilani Highway from Papalaua State Wayside Park to the Pali side of the town of Lahaina. 

Maui County, which consists of the islands of Maui, Lanai, most of Molokai and two uninhabited islands, already has begun working on a plan for managed retreat and new infrastructure to protect communities from the impacts of rising sea levels. Fossil fuel companies could have taken steps to reduce damage or warn people about the danger from continued use of oil and gas products that harm the environment, the lawsuit said.

But now the county wants the industry to take responsibility. 

“It might be a David vs. Goliath case, but someone has to take a stand and oil companies need to pay for the damage they knowingly caused,” Maui Mayor Michael Victorino said in a prepared statement. “Our ‘rock’ is science, which clearly shows the impacts of burning fossil fuels have led to sea level rise and other environmental impacts that will get worse, perhaps much worse, in the years ahead.”

Exxon did not respond to a request for comment.

Shell spokesperson Anna Arata said the company supports the transition to a lower-carbon future by lowering both the company’s emission and that of its customers.

However, she said in a statement issued in response to previous lawsuits, “We do not believe the courtroom is the right venue to address climate change, but that smart policy from government, supported by inclusive action from all business sectors, including ours, and from civil society, is the appropriate way to reach solutions and drive progress.”

Chevron spokesperson Sean Comey also restated the company’s response to previous climate lawsuits, saying the company is “working to find real solutions to climate change.” The climate lawsuits, he said, seek “to punish companies that deliver affordable, reliable energy.”

Maui joins a growing list of cities, counties and states that have filed lawsuits seeking to hold the fossil fuel industry accountable for damages and mitigation costs attributable to climate change that could severely strain taxpayer-funded budgets.  

The lawsuits cite a series of stories published  by InsideClimate News in 2015 based on internal Exxon documents that revealed the extent of the company’s knowledge about the central role of fossil fuels in causing climate change going back to the 1970s. 

Sea level rise threatens Maui’s five commercial harbors and five airports, which will become increasingly exposed to chronic flooding that will disrupt inter-island and transoceanic shipping and travel, impacting the county’s economic activities along with its residents and visitors, the lawsuit said.

“Since the County is almost entirely dependent upon imported food, fuel, and material, the vulnerability of ports and airports to extreme events, sea level rise, and increasing wave heights is of serious concern,” the lawsuit said.

On the island of Maui alone, more than $3.2 billion in assets, including more than 3,100 acres of land, 760 structures critical to Maui’s tourism-based economy, and 11.2 miles of major roads, are at risk of inundation and destruction because of sea level rise estimated to occur by the year 2100, the lawsuit said. 

Native Hawaiian cultural and historical resources, such as burial grounds and home sites, and the habitat of native and endangered species face destruction by rising seas, wildfires and rising temperatures, the lawsuit said. 

The county’s fire season runs year-round, rather than only a few months of the year. In 2019, called the “year of fire” on Maui, nearly 26,000 acres burned in the County—more than six times the total area burned in 2018, according to the lawsuit.

Heat continues to pound the islands with 2019 being the warmest year on record across the county. Kahului, on the island of Maui, broke or tied 61 daily record temperatures, leading to threats to human health and the water supply, the lawsuit said.

Maui’s case comes at a time when nearly two dozen other climate cases are wending through the legal system and facing stiff opposition from the fossil fuel industry. The U.S. Supreme Court recently agreed to consider whether the cases should be heard in state or federal courts.

The first round of cases was filed three years ago when five cities and three counties in California sought damages from the industry. Those cases were followed in quick succession by lawsuits in Colorado, New York City, Baltimore, Kings County in Washington state, the state of Rhode Island and the Pacific Coast Federation of Fishermen’s Associations. Most recently, Connecticut and Delaware have filed climate lawsuits, as have Hoboken, New Jersey, and Charleston, South Carolina.

Generally, these cases embrace a range of state law violations that include public nuisance, trespass, product liability and consumer protection. 

Like the Maui case, most of the lawsuits have been filed in state courts. But fossil fuel companies are fighting to have them heard in federal court, where they have largely been successful in fending off earlier climate lawsuits. Consequently, legal battle lines so far have been drawn over jurisdictional questions rather than on substantive issues addressing the fossil fuel industry’s role in climate change. 

The municipalities want the cases heard in state courts where they can focus on arguments grounded in state laws they believe more precisely relate to the cause and consequences of climate change. Having cases tried in local courts gives them an advantage because the courts are not constrained by prevailing federal laws that sharply constrain climate-related claims.

The industry is fighting to have the cases tried in federal court, where the law gives them the upper hand to argue climate change remedies are policy issues best left to Congress, not the courts, a position that the federal courts have embraced in similar cases.