By Amy Westervelt
When San Mateo County, Marin County and the City of Imperial Beach filed lawsuits in California courts earlier this week, charging a group of 37 oil and gas companies with public nuisance and negligence for their contributions to global warming-related sea level rise, they took a different tack than previous case unsuccessful cases that sought to hold the fossil fuel industry accountable.
The suits assert that these companies were responsible for 20 percent of all greenhouse gas emissions between 1965 and 2015, which makes them responsible for the resulting sea level rise. As a result, the municipalities argue that the companies should have to shoulder the cost of related damages.
The lawsuits, which are part of a growing wave of legal actions targeting Exxon and other fossil fuel producers, add tort law nuisance claims to a series of investor suits and attorneys general investigations.
By filing the suits in state courts, they hope to avoid the fate of previous communities that made public nuisance claims in federal court. Kivalina v. Exxon went as far as an unsuccessful appeal to the U.S. Supreme Court in 2013, falling into the same fate as Connecticut v. AEP in 2010. Both turned on a ruling that a federal public nuisance claim was barred by the Clean Air Act, and that the Environmental Protection Agency is charged with regulating greenhouse gases. By suing under California common law, the municipalities are hoping for a different result.
The suits are also very specific, as Michael Burger, director of the Sabin Center for Environmental Law at Columbia University, stresses. “Plaintiffs have framed their case not about climate change policy in the abstract, and not only about a specific quantity of emissions contributing to climate change, but also about these private actors’ individual and collective conduct, which includes not only producing GHG emissions but interacting with the market and with regulators in a sustained disinformation campaign,” he said.
Burger noted that the plaintiffs in this case also are not seeking specific policy changes, which could be seen as falling under the purview of a federal agency. “They are seeking damages for harms caused by market behavior they claim was, among other things, knowing, negligent, and intentionally misleading.”
It its suit, Marin County estimates that damages to homes and other structures due to tides and surge flooding could total nearly $16 billion by the end of the century. And San Mateo County is already suffering the impacts of sea level rise. “San Mateo County is the County that is most impacted by sea level rise in the State of California,” Don Horsley, a San Mateo County Supervisor, said. “When we started doing flood mapping in anticipation of rising sea levels and more frequent and stronger storms, we discovered (not surprisingly) that our County’s property loss on the bayside would be in excess of $39 million and it would displace approximately 100,000 residents.”
In Pacifica, Calif., erosion is already threatening the highway system and buildings. “Three apartment buildings have already had to be torn down before they fell onto the beach below due to extreme erosion,” Horsley said. “Along Beach Boulevard in Pacifica, the sea wall has collapsed in parts and it is estimated that the damage is in the range of $20 million. On the South Coast, the State and the County worked on a $2 million project to protect a portion of the State Highway 1 due to severe erosion.”
Horsley said the county has successfully fought public nuisance cases in the past, including against lead paint manufacturers. Kevin Kirchner of Sher Edling, the law firm handling all three cases, said the suits are stronger because the science tying greenhouse gas emissions to sea level rise has become more definitive.
“The science has really evolved around tying specific levels of emissions to specific sea level rise,” Kirchener says. “So has the science attributing emissions back to specific facilities. Having that scientific foundation to build the case on is really important.”
The Carbon Majors Database is a big part of that foundation. Established in 2013 by Richard Heede of the Climate Accountability Institute (CAI) to show how greenhouse gas emissions can be traced to a smaller group of commercial decision-makers and linked to companies, or ‘Carbon Majors,’ the database is essentially a list of the world’s top polluters. In a study published in Proceedings of the National Academy of Sciences earlier this year, MIT researchers showed that short-lived greenhouse gases such as methane, chlorofluorocarbons, and hydrofluorocarbons, that linger in the atmosphere for just a year to a few decades, can cause sea levels to rise for hundreds of years after the pollutants have been cleared from the atmosphere. Multiple other studies released during the past two years have linked emissions to accelerated sea level rise, which scientists say is happening 50 percent faster now than it was 20 years ago.
“And then of course you’ve got the Exxon case, where there’s just this whole trove of documents showing that they really did know 50 years ago,” Kirchener says.
Still, these are not slam-dunk cases. Defendants Exxon, Chevron, and BP declined to comment for this story, as did the American Petroleum Institute. Based on their actions in previous cases, the companies are likely to point out that it’s difficult to pinpoint exactly whose emissions caused what, especially with 37 defendants. Even with the science linking greenhouse gas emissions and sea rise, causation will be difficult to prove.
“It’s possible these cases will go nowhere,” Burger said.
But they’re precedent-setting regardless. “These cases represent a new pressure point on the fossil fuel industry,” he said. “They make the case that these companies are bad actors, who have lied for years to continue to generate profits at the expense of the local governments and individual citizens and residents who bear the costs of climate impacts.”
And they’re not lost causes, either. “Yes, it will be difficult, but advances in attribution science and in analysis of cumulative GHG emissions have increased the likelihood that a judge or jury would find a causal chain sufficient to satisfy the legal standards,” Burger said.