Air Date: Week of July 28, 2017

Pigeon Point Lighthouse in San Mateo County is one of the most iconic on the California Coast. (Photo: Frank Schulenburg, Flickr CC BY-SA 2.0)

Two counties and a city in California are suing more than 30 major oil and gas companies for losses and damages expected from global warming. Michael Burger, a law professor at Columbia University, tells Living on Earth Host Steve Curwood why these lawsuits could change the way lawyers approach climate litigation.

Transcript

CURWOOD: From PRI and the Jennifer and Ted Stanley studios at the University of Massachusetts Boston, This is Living on Earth. I’m Steve Curwood.

Investigations continue into whether ExxonMobil allegedly misled investors by failing to tell what their own scientists had found out about global warming continue, and now Exxon and other fossil fuel titans are being challenged on another legal front. Marin and San Mateo counties and the City of Imperial Beach in California are taking 37 companies and trade groups to court. They claim the defendants knew about the threats posed by burning fossil fuels years ago. And now, as seas rise on the California coast, and adaptation costs loom, these communities want them to pay damages.

For a discussion about what this newest string of lawsuits means for the legal war against climate disruption we turn to Columbia law professor Michael Burger. Welcome back to Living on Earth.

BURGER: Thanks, Steve.

CURWOOD: So, what's being sought in these lawsuits?

BURGER: What these local governments are claiming is that these fuel companies have known for many years about the consequences of the use of their fossil fuel products, particularly that use of these products would contribute to climate change and cause any number of damages, including damages resulting from sea level rise, and so they are seeking to have these companies pay for a number of different types of costs, including the costs of adaptation to climate impacts from sea level rise, as well as costs associated even with studying the issue, planning to address the issue, development of adaptation plans, and then implementation of those plans as well.

CURWOOD: So, be more specific for me about the kinds of climate impacts that the citizens of these counties have already been affected by and possible costs associated with them.

BURGER: The basic claim here is that, as sea levels rise, coastal property is lost -- It is literally inundated -- That homes are at increased risk of severe storms and flooding from extreme precipitation events, and that critical infrastructure has also, has already been impacted and is at risk of increased impacts. So, we're talking about roads, bridges, hospitals, and all kinds of infrastructure that make up the communities within these counties and city.

CURWOOD: Now, at the heart of these claims is the idea that companies are infringing on the public nuisance doctrine. What is nuisance law, and how might these companies be breaking these laws, or not?

BURGER: Basically, the idea of the public nuisance doctrine is that there are certain resources and rights to health and well-being that are held in common by the public, and that private actors can infringe upon those rights and create a nuisance that is not just a nuisance to you or me as a homeowner or a property owner or a person with our own bodies, but that, in fact, they're causing harms to goods that are possessed by all of the members of the state.

CURWOOD: What precedent exists for these cases?

BURGER: So, this is not the first time that we've seen common law claims brought around climate change. Back in 2005, a number of states and cities as well as some environmental organizations and land trusts claimed that five power companies, the five largest power companies in the United States, should be held liable for the public nuisance of climate change. And that case, which was known as Connecticut versus American Electric Power, eventually made its way all the way up to Supreme Court, where the Supreme Court said that the common law claims were preempted, that they were displaced by the Clean Air Act, that since Congress had acted on this already, there was no further room for the courts to act.

But importantly, what that case was talking about was a federal common law claim of public nuisance. These lawsuits allege state common law claims, and we have not yet had any final decision or really any court address the issue of whether state common law claims can survive.

CURWOOD: Now, some are comparing these lawsuits to litigation that took down the tobacco industry in the 1990s. How accurate might that comparison be?

BURGER: Well, there certainly are similarities. You know, I guess I'll start off actually by talking about what the key differences is.

In the tobacco case, you had companies that were manufacturing a product that was directly consumed by an individual and that direct consumption led to cancer and other health problems. Here, you have fossil fuel companies who are -- In this lawsuit, they're largely extraction and production companies, so they're pulling the fossil fuels out of the ground and preparing them for the market and sending them. But eventually, there are other consumers who are combusting those fossil fuels, and that includes you and me, and so you basically have a much longer chain of causation between what these companies have done and the harms that are being claimed and what the tobacco companies did and the harms that were claimed in those cases.

Now, that being said, there's a very key similarity here, which is, like the tobacco litigation in the 1990s, these lawsuits rely on a long history of corporate knowledge and obfuscation to make their claims. Basically, what the plaintiffs here are saying -- What these counties and cities are saying -- is that the fossil fuel industry knew that this was going to cause climate change. They hid that fact as much as they could. They lied about it. They paid others to lie about it, and they've been holding on as long as they can to their existing business models, and as a consequence they should pay for the damages.

CURWOOD: How does that assertion work under common law? If you say that somebody is making and selling a product that they know is bad, is going to cause harm, and not telling the public about those possible consequences, how vulnerable are they under this standard of common law?

BURGER: I mean, it remains to be seen. It's quite possible that these cases will be dismissed immediately for any number of different reasons. The courts could find that this is a political question, that climate change is really a political question that ought to be resolved by Congress and the Executive Branch and that courts shouldn't be deciding these types of cases. They might say that it's just impossible ultimately to prove causation. They might say that federal laws have preempted. These companies were extracting fossil fuels under license from the federal government when they were doing it within the United States and in most, if not all, circumstances with permits and licenses from other governments, foreign governments, when they were doing it abroad. So, it is certainly feasible that these cases will disappear fairly quickly.

That said, we're in a much different place than we were five years ago. The knowledge about how long these companies have known about climate change, what they did to obscure the public debate about climate change, is much more well-grounded than it was even back then. In addition, the science is much more advanced, and the science of attribution, in particular, is much more advanced. So, there are a number of different methodologies that scientists and experts can now rely on to say, well, we can attribute a certain quantity of greenhouse gas emissions to these particular actors. We can say these fossil fuel companies are ultimately responsible for this quantity of emissions. They can also say that this quantity of emissions has had this much of an impact on global warming and global climate change, and then, they can even say that this amount of global warming and global climate change has contributed X amount to the increased risk of sea level rise impacts in these particular communities. None of those are a slam-dunk, but the plaintiffs are in a much better place to rely on the existing science to support their claims.

CURWOOD: I would imagine that if one iota of responsibility is found by the courts there, that even if it's half a percent of the damages, those numbers are huge.

BURGER: Ultimately, they can be huge, especially if we start to see these types of lawsuits pop up, not just in these particular communities in California but other communities in California, and other communities all around the United States.

You know, I think that this lawsuit, these lawsuits are of a type of lawsuit that those of us in the field have been waiting a long time for. We've been wondering when these public nuisance state common law claims would be brought. And here they are.

CURWOOD: Michael Burger is Executive Director of the Sabin Center for Climate Change Law at Columbia University. Thanks so much for taking the time with us, Professor.

BURGER: Thank you, Steve.

 

Links

The Washington Post: “This could be the next big strategy for suing over climate change.”

(San Jose) Mercury News: Two Bay Area counties sue 37 fossil fuel companies over sea-rise.

Michael Burger Faculty Profile