By Karen Savage
New Jersey state Sen. Joseph Cryan’s nostalgia for pleasant summer days on the Jersey Shore is now mixed with anger.
“As a kid who had the opportunity to grow up on Belmar’s beaches in the 1970s, on the Jersey Shore of the 80s as well, the reality of it was that we thought 75 and 80 degree days were hot,” Cryan said. “It was just perfect.”
The state’s summers are now much hotter, the rising temperatures fueled by climate change. New Jersey recorded its hottest month on record in July. So far in August, parts of the state have seen 10 days with above average temperatures, a trend that’s expected to continue.
What makes the heat worse for Cryan is knowing that even as he enjoyed those blissful childhood days, the fossil fuel industry knew its products were driving global warming, its own research revealing the devastating effects of continuing to pump carbon into the atmosphere. Those effects include not just heat waves but also increased extreme weather, drought, wildfires and sea level rise that is inundating the coastline.
Cryan, who recently sponsored a bill urging state officials to “pursue legal action” against fossil fuel companies for climate-related damages, gave the opening remarks during an online panel aimed at educating New Jersey policymakers and the public on the rising costs of climate change and the growing trend of climate-related litigation across the country.
“We all know that not only is climate change real, we know that folks have known about it for a long time,” Cryan said. “When I was sitting on that beach, listening to my first Bruce Springsteen song, the reality is that those who ran fossil fuel companies knew then what they were doing to the environment.”
The event was held Wednesday after having been postponed due to the Covid-19 crisis. It was organized by the Climate Integrity Project, the Union of Concerned Scientists and Monmouth University.
Panelists included Brenda Ekwurzel, director of climate science for the Union of Concerned Scientists Climate & Energy Program; Nathaly Agosto Filión, Newark’s chief sustainability officer; and Marco Simons, general counsel for EarthRights International. It was moderated by Randall S. Abate, a professor and Rechnitz Family and Urban Coast Institute endowed chair in marine and environmental law and policy at Monmouth University.
Knowing now that fossil fuel companies chose to hide what they knew about climate change prompted Cryan to introduce the bill asking New Jersey Gov. Phil Murphy and Attorney General Gurbir S. Grewal to pursue legal action against fossil fuel companies for climate-related damages.
Successful litigation has three components, Abate said: “There’s a science component, economics and equity components and a law component.”
The Science
Sea level has risen about 18 inches in New Jersey since 1911, which is one of the highest rates on the Atlantic seaboard and among the highest in the U.S., Ekwurzel said, adding that about eight inches of that rise can be attributed directly to human activities, aka burning fossil fuels.
“We know that global mean surface temperature is rising and that causes the seas to expand, as well as the ice to shrink and deliver water to the ocean. Both of those cause sea levels to rise,” Ekwurzel said, adding that both are caused by greenhouse gas emissions from the combustion of fossil fuels.
Research has been able to link emissions by 88 of the largest fossil fuel producers—responsible for about 60 percent of the rise in emissions between 1880 and 2015—to specific climate impacts, Ekwurzel explained.
“Over the same historical time period, the emissions tied to the 88 largest carbon producers contributed 20 to 51 percent of global sea level rise,” Ekwurzel said.
“The bulk of the emissions were after knowledge of harm was known about the sale of this product.” Ekwurzel said, adding that research has shown the companies were well aware of the risks their products posed to climate change by 1965.
While the problem has been caused by fossil fuel companies, local taxpayers have been left to pay for damages and adaptation needed to protect themselves and their property, Ekwurzel said.
Economics and Equity
Agosto Filión is more concerned with rising temperatures and the impact extreme heat is having on Newark’s people. Of the city’s nearly 283,000 residents, 75 percent are people of color.
“Extreme heat is one of the most highest concerns for us with respect to public health challenges, and in Essex County, we see that we can be anywhere from three additional days over 100 degrees to 45 additional days,” Agosto Filión said, referring to future temperature projections.
Urban residents, particular people of color and seniors, are disproportionately affected by rising temperatures. Large areas of impervious surfaces such as concrete and asphalt absorb heat, exacerbating the impact of heat in many communities, known as the urban heat island effect. The scarcity of trees in cities and a lack of air conditioning in low income households compounds the effect.
For Newark, like municipalities across the country, securing funding for crucial climate adaptations is an enormous challenge, Agosto Filión said.
Situated slightly inland and protected in part by Jersey City, Newark, the state’s largest city, isn’t projected to be as hard-hit by rising seas as other municipalities in the state, but the impact will still be expensive.
“We still have massive costs associated with preparing for the impacts of sea level rise,” Agosto Filión said, adding that Newark taxpayers will need to pay about $30 million to build a seawall to protect them from inundation.
Nearly 80 New Jersey cities are expected to incur even higher costs, and total cost to the state for seawalls alone could top $25 billion, according to a 2019 study by the Center for Climate Integrity.
While the numbers are staggering, Agosto Filión said she’s committed to protecting her city’s residents.
“There’s all sorts of creativity that’s coming into this, and this example of holding the big polluters, the climate majors, accountable is an incredibly wonderful opportunity for municipalities to pay for some of these costs,” Agosto Filión said.
The Law
If New Jersey joins the trend of filing a lawsuit to hold the oil majors accountable for these damages, it will have plenty of examples to follow. More than a dozen suits have been filed across the country, accusing the industry of knowingly selling a dangerous product and in some cases charging it with outright fraud.
Simons is representing three Colorado communities that filed one of those climate liability lawsuits, against ExxonMobil and Suncor in 2018.
“There are tremendous costs that are being placed on local communities because of climate change,” Simons said. “Those costs are either going to be born ultimately by taxpayers from one source or another, or industry can contribute some of what they owe.”
Plaintiff communities have won a string of fights over whether the cases should be litigated in state court, where they were filed, or in federal court, where the fossil fuel companies think they have a better chance at getting them dismissed.
Thus far, most of the cases are in the early stages and there have been few rulings on whether the cases are viable, Simons said.
Like opioid litigation, the communities are seeking to recoup costs from harms the industry has imposed on entire communities, he explained, adding that most allege violations of state public nuisance laws.
“Public nuisance is essentially a legal term for any action that is an unreasonable interference with or injury to the rights of the public,” Simons said, adding that there isn’t much dispute that climate change is harming the public.
In addition to public nuisance suits, the attorneys general of Massachusetts, D.C., and Minnesota have filed suits alleging that the companies violated state consumer fraud statutes. A New York judge ruled last year that the AG’s office in that state failed to prove its allegation that Exxon defrauded investors.
Exxon is a defendant in all of the suits, which could give New Jersey policymakers and courts a unique role, Simons said, because Exxon is incorporated in the state..
“Exxon alone is responsible for more than 3 percent of global CO2 emissions since 1965, they’re responsible for more than 40 billion tons of CO2 or CO2 equivalent, which right now is more than the entire globe, and that’s in a year,” Simons said.
“The New Jersey state government can regulate Exxon as a domestic New Jersey corporation, and New Jersey courts can hear cases against Exxon not just for harms that it has caused in New Jersey, but harms that it has caused anywhere in the world.”
When an audience member asked about alternatives to litigation that might “incentivize better behavior” by the fossil fuel industry, Simons said communities should consider more comprehensive approaches, but that none of the alternatives will hold the industry fully accountable, nor will “better behavior” undo the harm.
“The companies knew about the problem, they carried on anyway, they misled the public, and most importantly, they robbed us of our best chance to act to avert climate harms,” Simons said.
“The notion that major corporations, the fossil fuel industry, is going to be incentivized into the radical action that is needed in order to arrest catastrophic climate change is a fantasy.”
Disclosure: Climate Docket is a project of Climate Communications & Law, a 501(c)3 organization. Two of its board members, Richard Wiles and Alyssa Johl, are also board members of The Center for Climate Integrity (CCI), which was a co-sponsor of this event, but Climate Docket has no formal relationship with CCI.