Under the Trump administration, more attention has been placed on cities for their role in tackling the effects of climate change. They are committing to international climate agreements. They are banning the most polluting cars. And now they are heading to court: This month, New York City joined a growing movement of cities and counties in announcing that they were suing fossil fuel companies for damages related to climate change and adaptation to sea level rise.
New York now stands alongside nine other cities, all in California, including San Francisco, Oakland, and Santa Cruz. The suits diverge in important ways (Santa Cruz, for example, is suing not simply over the damages from sea level rise but also from climate related drought) they’ve been viewed in tandem, as a part of a growing movement. New York’s suit in particular has been greeted with great fanfare. Legendary environmentalist Bill McKibben called it “one of the handful of most important moments in that 30-year fight.”
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But to understand what makes these suits different and one has to look back at the previous litigation.
Columbia’s Sabin Center for Climate Change Law maintains an extensive database of U.S. climate change litigation, with over 900 cases catalogued. If you look through those cases, the vast majority of them fall under what is called statutory law; in layman’s terms, this means that they are suing over the interpretation and enforcement of existing laws and regulations. These new suits fall under state common law, specifically tort law. (Remember those debates about tort reform, limiting how much someone could be awarded in damages in a malpractice suit? This is the same legal mechanism.)
“We’re looking for the government to do its job or polluters to stop polluting.”
Abbie Dillen is an attorney with Earthjustice, a nonprofit advocacy organization that tackles environmental issues through the courts. Her organization’s work mostly falls under statutory law — around the enforcement of existing laws — but she’s intrigued by this new wave of cases.
“I think what’s exciting about [these suits] is that the remedy that we would seek in our cases is usually an injunction. We’re not looking for money damages,” she told VICE Impact. “We’re looking for the government to do its job or polluters to stop polluting. Occasionally there are fines and things to stop the bad behavior if I’m suing a private bad actor. What’s different about tort law is it centers around an idea of damages.”
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In other words, cities are not asking for a change to any law or for government crackdowns on polluters. Instead, they are pursuing monetary compensation directly from fossil fuel companies to cover the cost of adapting their cities to climate change. It is this unique position — a responsibility to safeguard their property and citizens combined with their inability to enact any large scale regulation around emissions or fossil fuels — that make cities such compelling plaintiffs.
“When you’re dealing with the outside power of Exxon or Peabody Coal, the power of a city is limited,” Dillen said. “And the city is on the hook to protect residents from the effects of climate change. So they have the claim to be directly harmed.”
Cities have tried a version of this tactic before. In 2009, the native Alaskan village of Kivalina sued Exxon Mobil for damages under federal law, but the case was dismissed. The court ruled that the issue was a political one (that is, one that should be dealt with through legislation) rather than a legal one.
Cities are not asking for a change to any law or for government crackdowns on polluters. Instead, they are pursuing monetary compensation directly from fossil fuel companies to cover the cost of adapting their cities to climate change.
This new wave of cases are being tried under state law, in the hopes of avoiding a similar fate. But there have been other shifts since the Kivalina case, beyond just a change in venue, that could work in their favor. To begin with, the science of attribution has improved, not only in tracking how particular weather events are connected to or exacerbated by climate change but in tracking the origins of emissions. And the apocalyptic imagery of the burning hills of Bel Air drives home the impact of a warming planet.
Jonathan B. Wiener is a professor of environmental law and public policy at Duke University, and co-editor of the recent book Policy Shock. He says that, beyond scientific advances, the political and emotional impact of catastrophic events like the recent hurricane season could have an effect on how these cases proceed.
“These climate lawsuits and actions by cities may be gaining momentum after major storms like Katrina, Sandy, Harvey, Irma, Maria, and others, and also as the federal government is seen as doing less on climate policy,” he told VICE Impact. “These crisis events can bring risks and losses into the lived experience of people, spurring public outcry and legal and policy responses.”
But in addition to increased public awareness of the effects of climate change, there is also a better understanding of how industry tried to stifle that awareness. Work by journalists and academics alike have exposed fossil fuel companies’ efforts to cast doubt on humans’ role in climate change; an investigation by the Union of Concerned Scientists, for example, published a 1998 document from the American Petroleum Institute, the oil and gas industries trade association, which stated that “victory” would “be achieved” when “those promoting the Kyoto treaty on the basis of extant science appear to be out of touch with reality.” (The US never ratified the Kyoto Protocols.)
This clouding of scientific consensus recalls similar tactics by cigarette companies in the face of evidence that smoking caused cancer. Indeed, the New York and California cases against fossil fuel companies make some similar legal claims as those that brought down Big Tobacco.
Professor Michael Burger of Columbia’s Sabin Center says the cases against both industries “rely on the same basic story line of a bad actor.” But in claims around a problem as global and as diffuse as climate change, it can be a challenge to place blame on a discrete set of companies. For example, Burger points out that Chevron filed a complaint to add Statoil, the Norwegian oil and gas company, to Oakland and San Francisco’s suit. If the defendants follow this strategy of expansion, they could seek to add other fossil fuel companies, utility companies, car companies, even states, cities or individuals.
“The city is on the hook to protect residents from the effects of climate change. So they have the claim to be directly harmed.”
“The most difficult part [of these cases] will be proving causation,” Burger said. “Proving that these actors are responsible for the emissions that caused the climate change harms that these local governments are experiencing.”
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