Taking on the Fossil Fuel Industry: Why California’s Public Nuisance Lawsuits May Succeed Where Others have Failed By Kimberly Willis

Taking on the Fossil Fuel Industry: Why California’s Public Nuisance Lawsuits May Succeed Where Others have Failed

By Kimberly Willis

 

On September 19, 2017, the cities of San Francisco and Oakland filed separate lawsuits against five oil companies—Chevron, ConocoPhillips, ExxonMobil, Shell, and BP—for public nuisance.[1] Together, these five oil companies are responsible for 7.4% of global greenhouse gas emissions between 1988-2015.[2] San Francisco and Oakland allege these companies knew emitting greenhouse gases contributed to climate change which is causing sea level rise in their coastal cities.[3] These cities are asking for money damages to contribute to a fund to adapt to current and future sea-level rise.[4]

San Francisco and Oakland are not the first California cities to file public nuisance lawsuits against oil companies. On July 17, 2017, the City of Imperial Beach and the Counties of Marin and San Mateo each sued 37 oil companies for causing sea level rise in their coastal communities.[5] Those 37 oil companies accounted for approximately 20% of all industrial carbon dioxide and methane pollution released between 1965 and 2015.[6]

Why are these five lawsuits more likely to succeed than past lawsuits?

First, these lawsuits were filed in state court as opposed to federal court. Previous federal court lawsuits against oil companies alleging public nuisance due to sea level rise have failed. For example, in 2011 the Supreme Court held in American Electric Power Co. v. Connecticut that since the EPA already regulates carbon dioxide emissions through the Clean Air Act, parties cannot also bring a federal common-law public nuisance suit to abate carbon emissions.[7] Then again, a year later when the Alaskan village of Kivalina sued ExxonMobile for sea level rise the 9th Circuit held Kivalina’s federal common law public nuisance claims were also preempted by the Clean Air Act’s regulation of greenhouse gases.[8]

Courts have never addressed whether the Clean Air Act also preempts state common law public nuisance claims regarding greenhouse gas emissions. The American Electric Power Co. court specifically left this an open question.[9] Furthermore, the Supreme Court has previously held state common law suits are not always preempted by federal regulatory schemes because states may adopt higher common law restrictions on polluters.[10] These five current California lawsuits’ clever reliance on state common law as opposed to federal common law will present a novel question to the courts and give these plaintiffs a fighting chance at success.

Second, the causation links between industrial polluters’ greenhouse gas emissions, climate change, and sea level rise are better established and supported by science today than they were several years ago.[11] The science has improved to the point that a recently published and peer-reviewed report, the Carbon Majors Report, found only 100 companies have been the source of 70.6% of the world’s industrial greenhouse gas emissions since 1988.[12] The report also found half of global industrial emissions since 1988 can be traced to just 25 corporate and state-owned entities.[13] Establishing causation is critical for the success of a public nuisance lawsuit, and this new science and data makes the California cities and counties’ claims more robust than ever before.

Third, there is evidence that at least ExxonMobil knew their actions would cause climate change since the 1970’s and then chose to purposefully mislead the public and investors.[14] Harvard University recently published a peer-reviewed study that shows ExxonMobil deliberately misled the public for 4 decades about the dangers of climate change.[15] For example, a memo from 1982 describing “potentially catastrophic events” that could arise from climate change demonstrates ExxonMobile knew how their emissions would impact the earth.[16] The Harvard study also showed 80% of ExxonMobile’s research and internal memos acknowledged climate change was real and caused by humans, yet 81% of their newspaper advertisements regarding climate change questioned this fact.[17] Establishing that the defendants in the current lawsuits knew their actions would cause climate change and sea level rise will help the plaintiffs prove that the oil companies unreasonably interfered with their use and enjoyment of the coastline. Furthermore, it will thwart the oil companies’ potential defense that the benefits of the cheap energy they supplied outweigh the costs these communities will incur. The communities were misled about the dangers of using products that emit greenhouse gases. Had they known, they would likely have sought different energy sources that would not imperil every living being on earth and destroy the property values on their coastlines.

Utilizing state common law, new scientific causation links, and evidence that oil companies knew the impacts their products would have on the climate makes these California lawsuits more promising than prior lawsuits. The strategies of the plaintiffs in these cases mirror those used in the tobacco company lawsuits of the 1990’s, and those tobacco companies settled for a whopping $206 billion.[18] Californians have a decent chance at finally holding malfeasant corporate polluters accountable for their actions and winning billions of dollars to help their communities adapt to climate change.

 

[1] Compl., People of the State of Cal. v. BP P.L.C., No. CGC 17-561370 (S.F. Cnty. Super. Ct. filed Sept. 19, 2017); Compl. People of the State of Cal. v. BP P.L.C, No. RG17875889 (Alameda Cnty. Super. Ct., filed Sept. 19, 2017).

[2] The Carbon Majors Database: CDP Carbon Majors Report 2017, at 14.

[3] Compl., People of the State of Cal. v. BP P.L.C., No. CGC 17-561370 at 18-23 (S.F. Cnty. Super. Ct. filed Sept. 19, 2017); Compl. People of the State of Cal. v. BP P.L.C, No. RG17875889 at 16-21 (Alameda Cnty. Super. Ct., filed Sept. 19, 2017).

[4] Compl., People of the State of Cal. v. BP P.L.C., No. CGC 17-561370 at 39 (S.F. Cnty. Super. Ct. filed Sept. 19, 2017); Compl. People of the State of Cal. v. BP P.L.C, No. RG17875889 at 34 (Alameda Cnty. Super. Ct., filed Sept. 19, 2017).

[5] Compl. Imperial Beach v. Chevron Corp., No. C17-01227 (Contra Costa Cnty. Super. Ct. filed July 17, 2017); Compl. Cnty. of Marin v. Chevron Corp., No. CIV 1702586 (Marin Cnty. Super. Ct. filed July 17, 2017); Compl. Cnty. of San Mateo v. Chevron Corp., No. 17CIV03222 (San Mateo Cnty. Super. Ct. filed July 17, 2017).

[6] Compl. Imperial Beach v. Chevron Corp., No. C17-01227 at 33 (Contra Costa Cnty. Super. Ct. filed July 17, 2017); Compl. Cnty. of Marin v. Chevron Corp., No. CIV 1702586 at 34 (Marin Cnty. Super. Ct. filed July 17, 2017); Compl. Cnty. of San Mateo v. Chevron Corp., No. 17CIV03222 at 33 (San Mateo Cnty. Super. Ct. filed July 17, 2017).

[7] 564 U.S. 410, 424 (2011).

[8]  Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).

[9] 564 U.S. at 429(“None of the parties have . . . addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.”).

[10] See Int’l Paper Co. v. Ouellette, 479 U.S. 481, 497 (1987) (holding Clean Water Act did not bar state nuisance law suits against in-state sources).

[11] Two major cities demand fossil fuel companies pay for climate damages, ThinkProgress (Sept. 20, 2017, 4:55 PM).

[12] The Carbon Majors Database: CDP Carbon Majors Report 2017, at 10.

[13] Id. at 2.

[14] Assessing ExxonMobil’s climate change communications (1977–2014), 12 Environ. Res. Lett. 084019 (2017).

[15] Supra.

[16]  Id. at 10.

[17]  Id. at 7-9.

[18] Two major cities demand fossil fuel companies pay for climate damages, ThinkProgress (Sept. 20, 2017, 4:55 PM).

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