By Karen Savage
Marin County might not seem the most obvious place to launch a climate liability suit, but this coastal community in Northern California has already begun to battle dangerous levels of sea level rise, increased flooding and other impacts of climate change. A single storm caused more than a million dollars in damage last year.
More than 12,000 homes, businesses and other institutions with an assessed property value of nearly $16 billion will be at risk from tides and surge flooding by the end of the century, according to a vulnerability assessment the county completed in the spring of 2017.
“It made crystal clear that the cost of trying to protect the assets of risk from rising seas and more severe storms, and the human anguish over those that will be lost will be shocking and crippling for our residents,” Marin County Supervisor Dr. Kate Sears said.
Sears spoke during an online panel discussion on climate liability recently, an event sponsored by the Stanford Environmental & Natural Resources Law and Policy Program and the Center for Climate Integrity.
It didn’t take long to convince Sears that Marin County should file a climate liability suit. Sears is a former civil prosecutor for the California attorney general’s office who led a team of lawyers that secured a $3.8 billion settlement with predatory lenders.,
In 2017, Marin County joined what is now more than two dozen communities in suing fossil fuel companies to hold them accountable for the costs of climate change. The county’s suit, against Exxon, Chevon, Shell, BP, ConocoPhillips and more than a dozen other fossil fuel companies, includes claims for public nuisance, strict liability for failure to warn, strict liability for design defect, private nuisance, negligence, negligent failure to warn, and trespass. It is seeking compensation for current as well as future damages.
Sears said three factors convinced her that Marin County should file suit.
“First was the quality of the science, particularly the ability to attribute emissions to each defendant. Second was the trove of documents available about what these companies knew about the impacts of their products and the PR campaigns they conducted to deny or obscure the truth,” Sears said. “Third, I was persuaded by the kinds of legal claims we could assert—well-established causes of action under state law for the damages the fossil fuel industry companies knew their products would cost.”
Marin’s lawsuit is part of a second wave of climate change-related suits aimed at holding polluters accountable. The first wave, filed in the early 2000’s, targeted power plants and smaller emitters, explained Ann Carlson, a professor and co-director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
Those cases, which were filed in federal court, were eventually dismissed, in part because the defendants were only responsible for a tiny amount of total global emissions, Carlson said.
The newer cases have taken an entirely different route. Instead of targeting emissions, they seek to hold the industry liable for damages caused by their products, using current research that shows the extent to which fossil fuel burning has driven global warming. The communities also have new evidence that shows major oil companies have known that fact for decades, worked to obscure it to the general public, and sold their products anyway.
Still, when Carlson learned about the newer cases, she said she was initially “deeply skeptical.”
“Then I read the complaint and I admit to being quite blown away by how much stronger this was,” she said, adding that she now consults for some of the plaintiffs.
“The plaintiffs are going to need to show that the defendants ‘knowingly created or assisted in creating a substantial and unreasonable interference with the public right,'” Carlson said, referring to the legal standard that must be met in order to show that companies’ contributed to a public nuisance.
“I think it is significantly stronger to have a case which you bring collectively the largest emitters in the world from extracting fossil fields before the court, and so the court has a sense that this is a really big part of the picture,” Carlson said, adding that science can also now trace climate impacts directly to the major emitters.
“We now know that there’s a virtual linear relationship between the amount of CO2 and atmosphere and sea level rise, and from a causation perspective, that means the case is that much easier to demonstrate,” she said.
The cases are also strengthened by information learned about the oil companies through investigative reporting by InsideClimate News and the L.A. Times, which revealed that fossil fuel companies have known for decades about risks posed by climate change, but engaged in disinformation campaigns to deceive the public and derail the regulation of greenhouse gases.
Experienced litigators are also key, according to Carlson.
“The cases this time have been brought by lawyers who have litigated against oil companies in the past, and litigated hard and litigated over big sums of money,” she said. “That might seem like sort of an odd observation to make, but one of the things that I think any plaintiff going up against the oil companies has to be aware of it has to be prepared for, is really hard core litigation.
Sharon Eubanks, chief counsel for the National Whistleblower Center and a former Department of Justice lawyer who led the government’s racketeering case against the tobacco industry, said like Carlson, she has a good feeling about the new cases. She is particularly hopeful for those filed by state attorneys general. She also said it’s important to start planning for a potential settlement.
“At the same time that litigation is going forward, you can be planning for what might happen should you ever decide that this is something that the parties can resolve to end the litigation. But you’re going to have to be successful in a litigation before that happens,” Eubanks said.
When asked about a potential timetable for discovery and trial in the cases, both Carlson and Eubanks said it’s important to be patient.
“The state court will open up the record, probably call a status conference, then there will be a motion to dismiss and then there will be discovery in the case once the motion to dismiss is defeated,” Eubanks said, comparing tactics used by fossil fuel companies to those used by tobacco companies.
“You’ll see countless motions on silly things, many of them frivolous, actually, but you’ll have to deal with that and be strong to get to the end, and then focus on what it is you’re looking for. These cases, if you’re asking for a trial by jury—which I think is perfect for this kind of case—then the trial itself is going to take extra time.”
Carlson said repeated appeals and multiple motions will slow the cases, pointing to a request for further review of a ruling by the Ninth Circuit submitted yesterday by Chevron and the other defendants in cases filed by Oakland and San Francisco. Her best guess is that discovery could start within a year for most of the cases, with trials starting in three to five years.
“I do think the important thing about these appellate decisions is that the plaintiffs are getting one step closer to something that I think the defendants really want to avoid, and that is discovery—they don’t want their executives to have to sit down and be deposed under oath about what they knew and when they knew it and what they did about it, they don’t want more documents uncovered,” Carlson said.
“In the tobacco litigation, it was that slow unveiling of very damaging evidence to the tobacco executives and companies that really turned the tide. We already have some of that in these cases, but there’s going to be a whole lot more.”