By Dana Drugmand
NEW YORK—A worldwide movement seeking relief and accountability for the impacts of human-driven climate change through the courts has taken flight over the past year, and while none of the experts who spoke about the issue on on two panels in New York City said it would solve the climate crisis on its own, they agreed it will play an important role.
Two events in the lineup of Climate Week NYC demonstrated the diversity of the climate liability movement, from lawsuits against national governments and fossil fuel corporations to investigations of companies for human rights violations and for misleading shareholders on climate risks. These kinds of approaches are underway at the municipal, state, national and international levels.
“I think it’s really important we focus on the litigation aspect of dealing with climate change,” Sen. Sheldon Whitehouse (D-RI) said via video message at the event “Climate Change, the Courts and the Paris Agreement” held on Wednesday at Columbia University. “We have hugely powerful parties like the fossil fuel industry that dominate the executive branch and dominate Congress. It’s very important we have a court option where people can get a fair shake.”
Columbia’s Sabin Center for Climate Change Law tracks climate lawsuits worldwide, although the majority have been filed in the U.S. Within the past year, about a dozen cities and counties—and one state—have sued fossil fuel companies directly in an attempt to recover costs for dealing with climate impacts like sea level rise and extreme heat. Those suits have hit stumbling blocks, with federal judges dismissing the complaints by New York City, San Francisco and Oakland, but those cities are appealing and unwilling to give up the fight.
“I think it’s important we take this case to the absolute limit because it’s such an important case for New York City,” said Dan Zarrilli, New York City’s chief climate policy advisor, at a panel on holding fossil fuel companies accountable for climate harms.
New York City experienced that harm firsthand with superstorm Sandy in 2012, a storm made more damaging by climate change that cost the city $19 billion in damage. With Sandy-like storms expected to recur and with rising sea levels exacerbating the city’s vulnerability, the city is facing steep climate resiliency costs.
“We’re paying for this as a city, we’re all paying for this as taxpayers,” Zarrilli said. “If we can determine impacts and costs and attribute those impacts to emissions traced to certain companies, we have a duty to protect New Yorkers from those impacts and recover those costs.”
The initial dismissal of New York City’s suit by U.S. District Judge John Keenan is under appeal to the Second Circuit Court of Appeals, with briefs due early next year. Keenan’s ruling was based on past climate change lawsuits where federal courts have generally ruled that the legislative and executive branches have jurisdiction over climate change instead of the courts. But with legislative policy lagging badly behind the problem, cities and other communities hope to convince judges that the courts have a bigger role to play.
“Ultimately the courts will catch up to the court of public opinion,” Zarrilli said. “This is one way to change consciousness and change the conversation.”
Lawsuits Are Not Climate Policy
The liability lawsuits, which have also been filed by Baltimore, Boulder, Colo., King County, Wash., the state of Rhode Island, and a handful of cities and counties in California, have also run up against the assumption that they are asking courts to set climate policy. In dismissing San Francisco and Oakland’s cases, U.S District Judge William Alsup clearly discussed that as his reasoning without mentioning that the cases were about climate damages already suffered, not future climate laws or regulations.
“Our lawsuits are tort cases seeking money from companies based on wrongful behavior,” said Vic Sher of Sher Edling, the firm supporting several of the California cases as well as Baltimore and Rhode Island’s. “All of these cases are about remedying the incredibly large cost that public entities are incurring from past behavior.” That behavior, he said, was the “over-promotion and over-marketing that has led to an over-reliance on fossil fuels,” despite companies like Exxon and Shell knowing since the 1970s about the consequences of fossil fuel burning in causing climate change.
Knowingly selling a harmful product while publicly denying or downplaying the risk, as fossil fuel companies have allegedly done, is the kind of corporate wrongdoing that spurred successful litigation against the tobacco industry and lead paint manufacturers. Whitehouse drew the comparison to the tobacco lawsuits in suggesting the possibility of using the federal Racketeer Influenced and Corrupt Organizations (RICO) law against fossil fuel companies. He said the discovery phase of the tobacco litigation exposed deliberate deceit on the part of Big Tobacco, and that Big Oil may fear a similar fate.
“While liability is a concern for the fossil fuel industry, in my view discovery is a more immediate and perhaps more terrifying concern for the industry,” said Whitehouse, who was Rhode Island’s attorney general during the tobacco litigation. “They have worked so hard, including ExxonMobil now going to the Supreme Court to stop Attorney General Healey’s discovery from going forward, and I think they’re looking at the lessons from the tobacco industry.”
This threat of discovery has prompted a counterattack from Exxon and its industry allies. Sher referenced an aggressive communications campaign and a petition in a Texas court claiming the climate lawsuits are part of a big green conspiracy. “Part of what’s going on here is the nature of the beast. If you start poking the tiger, you draw a response,” he said.
The set of California cases that Sher is advising is currently before the Ninth Circuit Court as the fossil fuel companies challenge District Judge Vince Chhabria’s decision to remand the suits back to state court. Sher told Climate Liability News he is confident the cases will proceed in state court, where legal experts believe plaintiffs will have a better shot at succeeding.
States Step Up the Fight
While Rhode Island is the only state currently suing the fossil fuel companies over climate impacts, other states could join in eventually, especially if courts seem receptive to hearing state law claims that are now being tested. But state attorneys general have stepped up in other ways, including by challenging the Trump administration’s rollback of climate policies and by investigating Exxon over potential securities fraud.
“State AGs have built a very strong defensive wall against the Trump administration’s rollback efforts,” said David Hayes, director of the State Energy & Environmental Impact Center at New York University. He described the importance of lawsuits challenging rollbacks on regulations like the Clean Power Plan, vehicle fuel economy standards, methane leaks, and HFCs.
“We’re two years in and they’re still on first base,” he said of the administration’s attempt to gut environmental and climate policies and regulations.
“The role that the state AGs are playing now as a counterweight to this administration is so essential,” Earthjustice’s Abigail Dillen said. “I don’t think there’s ever been an administration that’s been so hostile to modern environmental regulation.”
New York and Massachusetts have also been investigating potential securities fraud based on Exxon’s disclosure of what it knew about climate change to shareholders. Lemuel Srolovic, environmental protection bureau chief in the New York attorney general’s office, told one of the panels that the state’s investigation is “nearing the end.”
“Applying our rule of law in the context of climate change is important and something that state AGs can do,” he added.
Lawsuits vs. Governments
Soon, the landmark youth-led climate lawsuit Juliana v. United States will grab headlines as it challenges decades of U.S. fossil fuel energy policy and claims the government is violating Constitutional rights to life, liberty and property. The trial in U.S. District Court in Eugene, Ore., is scheduled to begin Oct. 29.
Environmental law professor Mary Wood said the goal of the “trial of the millennium” is to force the government to rely on climate science. The young plaintiffs are demanding the government undertake a climate recovery plan based on the latest science.
“This will be the first time that U.S. fossil fuel policy meets climate science in court,” Wood said. “This case puts the law in the context of a ticking clock,” she said, referring to the short window of time scientists say we have to address climate change before it becomes catastrophically irreversible. Wood added that the hope is that the Juliana case will inspire similar cases around the world.
One such case has already had success in Colombia, where the country’s Supreme Court ruled in April in favor of 25 young people suing the government to reverse deforestation and protect their rights. Cesár Rodríguez Garavito of the Colombian organization Dejusticia, which supported the youth plaintiffs, said the government now has a clear roadmap for coordinating actions across agencies. The decision was historic in that it recognized the fundamental rights of future generations to a healthy environment and also declared the Colombian Amazon as an entity subject to its own rights.
When Dutch citizens won an important judicial victory in 2015, the government was ordered to increase its greenhouse gas emissions reduction targets, marking the first time that citizens successfully held their government accountable for inadequately responding to climate change.
“It’s completely transformed climate policymaking in the Netherlands,” Climate Litigation Network’s Tessa Khan said of the decision’s impact. The government has appealed the ruling and a decision on the appeal is expected by October 9.
“Globally speaking there’s a growing awareness that we’re in an urgent crisis and efforts by governments and companies [to address it] aren’t moving fast enough,” Human Rights Watch researcher Katharina Rall said.
Philippines Takes a Human Rights Approach
Marinel Ubaldo, a 21-year-old student and activist from Tacloban City, Philippines, opened the session “Voices from the Frontlines of Climate Change: Holding Fossil Fuel Companies Accountable for Climate Harms.” She gave a stirring firsthand account of surviving Typhoon Haiyan in 2013. She described the pain of losing her home and possessions, and of watching her father struggle to continue making a living as fisherman, suffer from depression and become suicidal.
“I fear that another Haiyan will happen again,” she said. “I’m here in front of you not just as a climate statistic, but as a human being hoping to remind you that we need to value human lives again.”
Ubaldo was one of the Filipino citizens who brought a petition to the state’s human rights commission seeking an investigation into the role of 47 fossil fuel companies in potential human rights violations due to climate change. The commission accepted the petition and has undertaken the investigation, including holding hearings in New York this week.
Commissioner Roberto Cadiz explained that although the investigation is not legally binding, it is important in elevating the conversation of climate change as a human rights issue. He described the process as a “global dialogue,” intended to be inclusive, transparent and conversational rather than adversarial.
“At the end of the day, what will carry will be the credibility of our findings, our inclusivity, our adherence to due process and that our recommendations will be based on clear scientific evidence,” he said. Litigants in future court cases could potentially use the findings later on.
The commission is expected to issue its findings early next year.
All of the cases, the panelists agreed, are important in shifting people’s perception of climate change from a purely political issue to one that everyone should consider critically important.
“The courts provide a really unique forum to talk about climate change in a fact-based way,” Dillen said.