Until Rhode Island filed, the more than one dozen suits filed attempting to hold the fossil fuel industry accountable for climate related impacts had all come from cities or counties. Almost all are in a jurisdictional battle, striving to stay in state courts where they believe the law will be more favorable, instead of federal court, where the industry would like them tried. And they are splintered across the country, ranging from New York City to Boulder, Colo., to San Francisco and Oakland
“Because of their position in the federal system and their ability to make legal arguments that others can’t, I wouldn’t be surprised at all if the states are soon leading the way with climate suits like they’ve done in past with tobacco and pharmaceutical companies,” said Paul Nolette, a political science professor at Marquette University. “I expect a flood of litigation here, ultimately led by the states.”
Nolette and others say Rhode Island’s suit could be one of the strongest ever filed because it makes strict liability claims against the companies in addition to public nuisance claims, whereas the communities relied almost solely on public nuisance claims.
The difference is, a strict liability claim needs to prove the state has been damaged but does not have to prove negligence. Proving negligence is essential to proving public nuisance.
“I think strict liability is a game changer for these cases,” said Sharon Eubanks, a former Department of Justice lawyer who led the government’s racketeering case against the tobacco industry.
Eubanks said that the cases recently dismissed by federal judges—those filed by New York, San Francisco and Oakland—were not judged on the basis of strict liability claims because those claims weren’t included in the initial pleadings.
For strict liability claims to prevail under Rhode Island law, the state needs to show the defendants engaged in business, sold the product to plaintiffs, the product was used as intended and it caused harm to the plaintiffs.
Nolette said the state attorneys general are in an excellent position to file climate change-related suits. One reason is that attorney generals are able to rely on the principle of parens patriae, a doctrine that gives states the power to speak on behalf of their citizens, a legal maneuver not available to local jurisdictions.
“Whereas the jurisdictions are limited to making claims about how they themselves as a jurisdiction have been damaged, states can also make claims about how the citizens and the public trust in general have been damaged by these actions. That’s very significant, I think, because it really broadens the potential of the suit,” said Nolette, who studies state attorneys general and their role in national policy making.
Rhode Island is alleging that 21 oil and gas companies—including giants Exxon, BP, Shell, Chevron and ConocoPhillips—knowingly contributed to climate change and failed to adequately warn Rhode Island citizens about the risks posed by their products. The state alleges the companies’ actions contributed to sea level rise and violated state laws by polluting, impairing and destroying the state’s natural resources, and interfering with the public’s ability to use and enjoy those resources.
Shell recently filed a motion to move the case from state to federal court, a common move by defendants because federal precedent favors the companies. Those precedents were cited by the federal judges in dismissing the suits by New York, San Francisco and Oakland.
“I think the Rhode Island complaint was pled in such a way to make it more likely, appropriate, and proper that the case stay in the court that it’s in,” said Eubanks, adding that the case is strong, even if it lands in federal court.
Norlette, who predicts several state attorneys general will follow Rhode Island’s lead, said many of today’s climate suits have been in the works since the last Bush administration.
“When Obama came in, [plaintiffs] thought the EPA would take more aggressive action, so they held back,” he said, adding that President Trump’s recalcitrant stance on climate change has prompted the new wave of suits.
“I do expect considerably more litigation and attempts in state court to push these innovative claims that have been lying dormant in the years that the Obama administration was taking administrative action on this stuff,” Norlette said.
Eubanks said suits by attorneys general are a much bigger threat to oil and gas companies than those brought by city and county attorneys.
“It’s similar to what happened in the tobacco litigation—we had suits by the state and then we had a separate suit by the federal government and it was those suits involving sovereign entities—states and federal government— that finally got the issue resolved,” she said, adding that states have a lot more to claim in the way of damages.
Like tobacco cases, Eubanks expects climate suits to continue to come in waves.
“It takes a little time and we learn from each case. Look at the Our Children’s Trust case. Many people had written [it] off ages ago but it’s still going strong and that’s against the federal government. There are aspects of these cases that I think people want to see resolved in a court of law and there’s nothing wrong with that. You think about separation of powers, the courts interpret the law,” she said.
“The climate cases aren’t seeking to change the law, that’s the job of the legislature; they’re seeking to have the law enforced and I think this complaint in Rhode Island has really captured what I think is a good way to move ahead in these cases,” Eubanks said.
It’s yet to be seen how many other state attorneys general will follow Rhode Island and Kilmartin’s lead.
Norlette said the chances of Republican attorneys general filing suit are slim, but if a critical mass of states led by Democrats file suit, it could ultimately force settlement talks.
“Sure, a big part of this is about the trial, but it’s also about forcing a settlement and that’s the one area of this I think that will ultimately be different than tobacco, because ExxonMobil and the other companies, certainly at this point, don’t seem to have any interest in settling and they know what’s going on here, they know the parties are ultimately trying to force a settlement,” said Norlette, who said the more attorneys general that join in, the more power they have in settlement talks.
Norlette said states that do file suit would likely do so separately in order to have the cases remain in state court, but would likely coordinate to all file on the same day, using essentially the same suit.
“It’s separate suits, but really very much collaborative,” he said, adding that Kilmartin had likely already been in touch with Massachusetts attorney general Maura Healey and New York Attorney General Barbara Underwood, who are each conducting investigations into possible climate fraud by Exxon.
Exxon has alleged that those investigations are politically motivated and a violation of the company’s First Amendment rights.
“There’s certainly politics involved in this, there’s no question,” Norlette said, because climate change has become a political issue. “I wouldn’t characterize it as a conspiracy against ExxonMobil. It’s a situation where the AGs are in a position where they can probably fire off a more powerful lawsuit than any other jurisdiction or private party can.”
Eubanks said she also thinks civil conspiracy—which so far isn’t included in the Rhode Island suit—could be a course of action in future climate cases.
“What could be alleged is that the industry cooperated among itself and formed entities and enterprise—kind of like a racketeering enterprise—to promote misinformation along the way,” she said, adding that the Rhode Island complaint could be amended if the elements of civil conspiracy are met under state law.
Eubanks cautioned that the litigation process will take time and will include failure along the way. Ultimately, the tobacco cases succeeded under the Racketeer Influenced and Corrupt Organizations Act (RICO), but it came after many unsuccessful suits using other tactics.
“I look at everything that looks like tobacco through the lens of what happened in tobacco and I have to look at the 50 years of fraud that we alleged in our case and I have to look at what we refer to now as the waves of litigation,” she said.
“Between 1954 and 1994, the industry was sued more than 800 times and they went to trial only 23 times and guess what they paid in damages— nothing, not a nickel in that entire time,” Eubanks said, adding that each succeeding case built upon the last, but ultimately most of them failed.
“What stayed was a racketeering case—a big old fat fraud case,” Eubanks said. “Nobody likes when somebody else is committing fraud for the purpose of lining their own pockets and information like this that’s so deadly to the planet, keeping it in their back pocket could make a big difference and be a big deal.”