By Bobby Magill
Can fossil fuel companies that are major contributors to climate change be held liable in court for the damages associated with wildfires raging across the West?
Legal experts say maybe, but it’s a long shot.
Climate change has likely made this year’s extraordinary Western wildfire season — so far burning nearly 8 million acres amid an extreme heat wave and forcing thousands to flee their homes from California to Montana — much more severe.
Research shows that rising temperatures caused by global warming have doubled the land area in the U.S. burned by wildfires since 1984.
As evidence for fossil fuel companies’ role in causing climate change continues to mount, communities vulnerable to the ravages of global warming are beginning to argue that the companies should foot some of the cost of climate change-related damages.
That’s the basis for a lawsuit filed in California state court in July by three communities—Imperial Beach and Marin and San Mateo counties—which are seeking damages from 37 oil companies for their role in contributing to global warming-related sea level rise.
New research clarifies oil companies’ climate culpability. The world’s 90 largest fossil fuel companies are responsible for about 50 percent of human-caused global warming since 1880, according to a study published this week in the journal Climatic Change. Since the 1960s, those companies have been aware of the damage their products are doing to the climate, but have instead chosen to mislead the public about the climate impact.
As local governments launch a legal battle against oil companies, it may be the right time for wildfire-ravaged communities to consider doing the same, said Mary Wood, an environmental law professor at the University of Oregon School of Law.
“Local communities hit with climate disaster can set the context for future liability by pointing a finger of blame towards the corporations that have unleashed this unfathomable destruction across the planet,” Wood said. “Until communities in the path of destruction hold these companies accountable as a moral matter, these corporate captains will continue their catastrophic course.”
Vic Sher, a partner in Sher Edling, the law firm representing the California communities, said oil companies have been aware for decades that their products have helped create climatic conditions ripe for wildfires.
“There have been some studies about the relationship between human-caused emissions and drought and related impacts in the West, so this is certainly an attribution issue that bears a look,” Sher said.
Communities ravaged by wildfire don’t have to wait for precedent to be set in the California cases, but their path to success in court is unclear, said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.
“The science of attribution in relationship to wildfire is different than the science of attribution in relationship to sea level rise,” he said. “This difference would matter, one way or another, in court.”
The link between sea level rise and global warming is clear. Burning fossil fuel has led to inexorably rising carbon dioxide concentrations in the atmosphere, leading to warmer global surface temperatures. The warming is shrinking polar ice caps, melting glaciers and ice sheets on land and causing seawater to expand. If humans continue emitting greenhouse gases at present levels, seas could rise between 14 and 32 feet worldwide after 2100, submerging many major cities beneath ocean water.
The biggest hurdle to a wildfire lawsuit: “Proof,” said Tracy Hester, an environmental law professor at the University of Houston.
“The truth is, there are going to be other climate change plaintiffs with damages with a much clearer link,” Hester said. “Sea level rise is going to be easily linked to overall climate change. That is going to be a challenge. Forest fires are going to be exponentially more difficult to show. There are too many other intervening causes.”
James May, an environmental law professor at Delaware Law School at Widener University, said that linking oil companies to climate change and then to the cause of a specific wildfire is tough because plaintiffs would have to show that a specific company’s actions would have led to damages from a specific wildfire.
Scientists would have to testify to that direct connection, he said.
“In tort law, you have to show that but for the defendant’s actions, the injury would not have occurred,” May said. “On the oil and gas side of it, there are multiple actors and actions they will argue break that linkage between what they do and the effects of the wildfires.”
Those other factors include whether humans ignited the fire, the climatic conditions under which the fire is burning and the condition of the trees, brush and grasses in the forest — the fuel feeding the fire, said Park Williams, a bioclimatologist at the Lamont-Doherty Earth Observatory at Columbia University’s Earth Institute.
That’s why scientists aren’t yet ready to attribute any specific wildfire to global warming, even though there is evidence of an overall connection, Williams said.
Humans intentionally or accidentally ignite forest fires each year, helping to extend and exacerbate wildfire season. One of this year’s most notorious human-caused wildfires includes the giant Eagle Creek fire in Oregon, which caused ash to rain down on Portland this week and forced hundreds of evacuations in the Columbia River Gorge. Teens are suspected of causing the blaze by carelessly tossing fireworks.
There would be no wildfires if they didn’t ignite in the first place, but the amount of land that burns each year and the severity of wildfire depend more on drought and heat than the number of fires that are ignited, Williams said.
“In the absence of global warming, we would have had about half as much forest fire over the last 33 years than we actually had,” Williams said. “On a year-to-year basis, it’s the climate that dictates what the really big fire years are, not the number of (wildfire) ignitions.”
Global warming is responsible for turning Western forests extremely hot and tinder-dry, creating an environment perfect for the ignition and spread of catastrophic wildfire. But the way many Western forests have been managed over the last century has given climate change a helping hand in creating conditions ideal for the spread of catastrophic wildfire, Williams said.
For example, forest managers actively suppressed naturally-caused wildfires for decades, allowing forests to grow more dense with more trees. More trees mean more fuel for wildfires, providing ample fodder for more severe blazes and forests that are more vulnerable to drought and heat, Williams said.
All these factors put together make wildfires tricky to attribute to global warming.
Despite the uncertainty involved in attributing specific wildfires to climate change and the long-shot likelihood of a lawsuit’s success in court, Wood said it’s time for communities affected by fire to act.
“These catastrophic wildfires can no longer be considered random, isolated events,” Wood said. “They are aggravated by a warmer planet and extreme climate disruption. It is past time for communities to wake up to climate reality and find out who is lighting the fuse, before all is lost.