Newest Climate Liability Suits: Climate Justice Is Racial Justice

By Karen Savage

Climate-related lawsuits—like any litigation—can seem far removed from those who are most directly impacted. 

Municipalities filing climate change-related lawsuits have outlined why they believe fossil fuel companies have violated the law. They’ve described climate damage done to local infrastructure and why a warming atmosphere creates dangers to public health, property and livelihoods and why the industry should compensate for those harms.

But until recently, the suits have not mentioned that climate change does not impact all communities equally.

That changed last week, when attorneys general in Minnesota and Washington D.C. honed in on the disproportionate impact climate change is having on low-income communities and communities of color as they filed lawsuits against major fossil fuel companies.

First up was Minnesota Attorney General Keith Ellison, who sued Exxon,  three Koch Industries entities and the American Petroleum Institute for deceiving the public about the risks their products pose to the climate.

“Minnesota is in the midst of a climate-change crisis,” Ellison wrote in the complaint, which was filed in Minnesota state court. “The world has already warmed approximately two degrees Fahrenheit due to human-caused climate change; Minnesota has warmed even more. Warming will continue with devastating economic and public-health consequences across the state and, in particular, disproportionately impact people living in poverty and people of color.” 

Washington D.C. attorney general Karl Racine echoed Ellison’s emphasis on the disproportionate impacts in a lawsuit filed the next day in Washington’s Superior Court against ExxonMobil, BP, Chevron, and Shell for climate deception.

“The District will continue to experience flooding, extreme weather, and heat waves exacerbated by climate change, with particularly severe impacts in low-income communities and communities of color,” wrote Racine in his complaint.

Low-income communities and communities of color bear the brunt of environmental injustice, said Sacoby Wilson, director of Community Engagement, Environmental Justice, and Health (CEEJH) at the University of Maryland-College Park.

“The communities that are impacted by environmental injustice, they’re using the least amount of resources, they’re the ones that are hosting the land uses, but they’re not getting any real benefits,” Wilson said in an interview. 

The trend toward holding the fossil fuel industry accountable for the real-world impact of burning their products began in 2017 with a group of California communities filing lawsuits seeking compensation for climate-related damages. The major cities of San Francisco and Oakland joined in.  It has since grown to include lawsuits on the East Coast (Baltimore, New York City and now Washington) as well as landlocked communities (Colorado, Minnesota).

All have already suffered damages that science has shown are driven by a warming climate: drought, wildfires, more intense extreme weather including excessive rainfall, stronger storms and brutal heat waves. But studies have also shown that the impacts are not distributed equally. 

An Unfolding Public Health Crisis

Environmental justice communities in the U.S. are exposed to far more pollution than they consume. Segregated urban neighborhoods experience greater rates of heat-related illnesses due to the prevalence of paved surfaces and a lack of green infrastructure. 

As a result of the long legacy of environmental racism in Mississippi and Louisiana, residents of environmental justice communities were unable to evacuate prior to Hurricane Katrina, were among the most impacted and the last to recover, according to research by attorney Reilly Morse for the Joint Center for Political and Economic Studies.

“Climate change may be the greatest of all public health challenges,” said Doug Blanke, director of the Public Health Law Center at Mitchell Hamline School of Law, who previously worked on tobacco litigation for the state of Minnesota. 

For urban residents, rising temperatures and other climate-related impacts pose a unique combination of health challenges, Wilson said.

“In many urban areas you have high degree of impervious surfaces, so you have an absorption of heat, which going to create this urban heat island effect,” Wilson said, adding that as temperatures rise, so does the use of air conditioning, which in turn increases energy demand and further reduces air quality for those living near energy producing facilities.

Adding to the injustice is that many who live in urban heat islands also live in homes without air conditioning, Wilson said, adding that Baltimore is especially hard-hit.

“Deaths in Baltimore have gone up over time because of this increased temperature trend and also, of course, because of the urban heat island effect,” Wilson said. “You’ve seen a number of older adults, elderly adults, who have died from heat-related morbidity in Baltimore.”

Baltimore City Solicitor Andre M. Davis filed a climate liability lawsuit against BP, Chevron, ExxonMobil and 23 other companies in 2018, alleging the companies had worked for decades to conceal the dangers of climate change and seeking compensation for damage done to the city. 

Baltimore’s suit alleges claims of public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, and trespass, as well as violations of Maryland’s Consumer Protection Act. 

The lawsuit doesn’t directly address the impact climate change is having on environmental justice communities, but it does make clear that the city and its residents have already been harmed and that harm is expected to continue. 

“Baltimore is particularly vulnerable to rising temperatures,” wrote Davis in the city’s complaint. “Because of Baltimore’s urban infrastructure, increased temperatures will add to the heat load of buildings and exacerbate existing urban heat islands adding to the risk of high ambient temperatures. On some summer days, air in urban areas can be up to 10 degrees Fahrenheit warmer than other areas.”

Inequitable temperature increases are taking a toll on the physical and mental health of its Baltimore’s most vulnerable citizens, according to Code Red, an investigation conducted by the University of Maryland’s Philip Merrill College of Journalism, and NPR.

Armed with heat sensors, investigators fanned out across the city to monitor heat and assess its impact on city residents. Reporters spent 10 weeks last year interviewing residents in some of Baltimore’s hottest neighborhoods. They also talked with doctors, public health leaders, church leaders and other climate experts.

What they found was an alarming public health crisis that can be traced to a pattern of housing segregation forcing many of the city’s Black residents to live in urban heat islands with little tree canopy for cooling. Indoor heat index values as high as 119 degrees were reported.

“We have to root ourselves in the reality that Baltimore for all this great history has a history of inequality and racism that we don’t like to talk about,” Baltimore City Council President Brandon M. Scott told the investigators.

While climate impacts themselves disproportionately affect environmental justice communities, these effects are often further amplified by systemic racism. 

Women exposed to urban heat islands and air pollution are at higher risk of giving birth to premature, underweight or stillborn babies than other groups, according to a review of 57 studies published since 2007. 

Authors of the review, which was recently released in the Journal of American Medical Association’s Network Open, found the risks are even higher for Black women than their white counterparts, a finding that can be attributed to health disparities in the healthcare system.

Location Matters

Numerous studies have also shown that fossil fuel facilities are disproportionately located in communities of color, exposing those communities to higher levels of direct pollution, along with the larger issue of climate change. One NAACP study in 2017 showed that more than 1 million African Americans live less than a half-mile from an oil or natural gas well or facilities where oil and gas are processed, transported or stored, and 6.7 million live in a county with a refinery.

North Minneapolis, a predominantly Black community, is home to 11 companies that are polluting the air, soil and water, according to Sam Grant, executive director with the advocacy group MN350.

“The statement of ‘I can’t breathe’ is matched by a pattern of air inequality where we can’t breath as well,” Grant said, at a press conference shortly after Minnesota’s suit was filed. 

“As we come together to hold American Petroleum Institute, Exxon, and Koch Industries accountable in this consumer-protection lawsuit, it is important to be mindful that the harm caused by their bad corporate behavior is not evenly experienced,” Grant said. 

“Once you get one polluter, you get two, once you get two you get three, so it becomes a spiral in effect,” Wilson said. “Communities that host these polluters, their eco-systems are used as sinks for pollution and their bodies are literally used as sinks for pollution—–the term I use actually is environmental slavery.”

Not Minnesota’s First Rodeo

This is not the first time Minnesota has sought to hold large corporations accountable for deceiving its citizens about the harmful effects of their products. 

Blanke was part of a legal team led by Hubert H. Humphrey, then Minnesota’s attorney general, which in 1998 reached a landmark settlement agreement with the tobacco industry for deceiving the public about the risks of smoking. 

Minnesota’s settlement, which was far larger than other multi-state settlements, included $6 billion in damages over the first 25 years, with additional funds to be awarded annually forever. It forced the companies to remove tobacco billboards, to stop marketed targeted to children, to stop using paid cigarette placement in movies, and to fund a $200 million public health foundation to conduct tobacco research and to help individuals stop smoking. 

Through discovery, Minnesota also obtained 35 million pages of previously secret company documents from the tobacco giants. 

“Misleading the public about science is not a new concept,” Blanke said. “Unfortunately, some companies seem to care more about their bottom lines than the public’s health. But it’s a violation of Minnesota law to mislead consumers about the products you sell, and the Attorney General has laid out a powerful case that these companies did exactly that.”

Minority Communities Fight Back

Ellison has accused Exxon, Koch Industries and the API of violating many of the same statutes Humphrey used to successfully prosecute the tobacco industry, which was found to have been targeting African American communities. 

Deception by the fossil fuel companies and the damage they’ve done to the climate has motivated a whole new generation of climate activists, according to 16-year-old Juwaria Jama, co-state lead for the Minnesota Youth Climate Strikes. 

“It is without a doubt that corporations like ExxonMobil, Koch Industries, and the American Petroleum Institute and countless others weaponize race … by infringing on native rights and low income communities to build their pipelines and get their oil,” Jama said. 

“Every summer seems hotter than last, every year there’s a new set of hurricanes and super storms that are only supposed to come every hundred years.” 

Indigenous communities face a multitude of climate change-related challenges, according to Winona LaDuke, a resident of the White Earth Reservation in northern Minnesota and program director for the advocacy group Honor the Earth.

“Wild rice, a sacred plant to Minnesota’s Ojibwe bands, is at risk as climate change is driving wetter summers,” LaDuke said. 

The risks posed by years of deception by the companies continue to grow, said LaDuke, who has led local resistance to Enbridge’s proposed Line 3 pipeline. If built, the pipeline will carry carbon-intense tar sands oil from Canada to Wisconsin.

“I drove out of Minneapolis last week and it was raining hard, and I worried—I worried that the street was going to flood, because we need infrastructure in Minnesota for climate change, infrastructure that serves people and public health,” LaDuke said.

“And so my suggestion is that those who work on pipelines in the North should really work on pipes and sewers for Minneapolis and Minnesota—that’s what we need.”