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Journalists, researchers, scientists, and lawyers are converging around the idea that fossil fuel companies are liable for climate change impacts. Will the cases stick?
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It’s always tempting to throw in a “Big Tobacco” reference when a string of lawsuits target a particular industry, but in the case of the climate-change lawsuits currently piling up against fossil fuel companies, the comparison is apt. Here’s why:
First, the cover-up
Several years’ worth of investigative journalism and scholarly research have revealed conclusively that fossil fuel companies knew the danger their products posed to the world and invested heavily in disinformation campaigns to keep regulation at bay. Now, a suit brought against Exxon Mobil by the attorneys general of Massachusetts and New York, is bringing to light internal memos and emails that reveal not only that fossil fuel companies’ own scientists warned them of the impacts of climate change, but also that the company kept separate internal and external projections on climate, and purposefully misled the public about the role man-made emissions play in global warming.
In broad strokes, fossil fuel companies seemed to believe that eventually some combination of regulation and Mother Nature would conspire to strand the fossil fuel assets of companies like Exxon, and a disinformation campaign would buy the industry time to get what they could out of their holdings before reality caught up with them.
It was Exxon’s attempts to keep reality at bay for longer than its competitors that kicked off an investigation into its practices; an investigation that’s now threatening to knock down the house of cards that is the fossil fuel industry’s stance on climate. A couple of years ago when Shell and Chevron began writing off assets they assumed would be stranded, and adjusting their stock prices accordingly, Exxon insisted that its holdings were still fine, artificially inflating its stock price. State attorneys smelled a rat, brought a fraud suit against the company, and in the course of discovery lawyers are finding all they need to bring multiple other suits against not just Exxon but all the major players in the fossil fuel industry.
Then, more science
At the same time that documents are revealing what fossil fuel companies knew about climate change and when, the emergent arm of climate science known as “attribution science,”–research that connects emissions to both their sources and impacts–is beginning to result in the sort of data that will help lawyers force industry’s hand.
Last year, a team of scientists at Rutgers University, led by Bob Kopp, pinpointed the precise contribution human-caused emissions have had on global sea-level rise. Scientists at Climate Central took that data and built on it, pinpointing the extent to which human-caused sea-level rise has exacerbated storm surges and flooding during major storms. Also last year, scientists at the Union of Concerned Scientists explicitly quantified the role of anthropogenic climate change in human mortality during extreme heat waves. Earlier this year, researcher Richard Heede released the Carbon Majors report, which lists the 100 companies responsible for a whopping 71% of global carbon emissions. This month the Union of Concerned Scientists released a report that builds on Heede’s work, indicating that half of global warming is caused by just 90 companies.
And now, the pile-on lawsuits
Discovery in the Exxon case continues to produce more and more documents (including some rather incriminating emails from our Secretary of State Rex Tillerson, using the alias Wayne Tracker—you can’t make this stuff up.)
The combination of the Exxon documents and new attribution science are also inspiring a host of other suits, including three more against Exxon and several by coastal communities attempting to hold the largest fossil fuel companies financially responsible for climate adaptation costs that ostensibly could have been avoided had they acted on climate change when they first became aware of it decades ago. The cities of San Francisco and Oakland became the latest to join the fight this week, filing suits against several major fossil fuel companies, including Chevron, ConocoPhillips, ExxonMobil, Shell and BP, and demanding billions in compensation for past and future flooding, coastal erosion and property damage related to climate change.The fact that these suits are being filed at the state and not federal level bodes well for them according to legal experts.
“For various reasons federal courts have avoided the question of who’s responsible for climate change,” says Jeffrey Gracer, principal at environmental law firm Sive, Paget & Riesel. “But what could happen in a California court or a New York court under state law could be very different. And also the science has evolved so there’s more to say on the science than there was even ten years ago.”
Not everyone sees parallels between the Big Tobacco suits of the 1970s and 1980s and what’s happening in climate litigation now. “A lot of the same tactics are being used, but I don’t think the suits are the same really; there’s not the same concerted effort that there was with Tobacco,” says Jane Montgomery, an environmental law partner at Schiff Hardin. “It’s mainly historic documents being used to create a narrative around the idea that villains exist and that they’ve tried to destroy the world by emitting greenhouse gas emissions. But the reality is greenhouse gas emissions are the result of every single thing we use. It’s not a big oligarch trying to force these things on the general public.”
Peter Frumhoff, director of science and policy and chief climate scientist at the Union of Concerned Scientists (UCS) says the tide is changing on this sort of thinking, particularly when people see documentation of the fossil fuel industry’s efforts to keep information from the public that might have influenced people to change their behavior.
“One thing I’ve been struck by is that in the early days of cases being brought against tobacco, juries and judges ruled for industry, and they used the same kind of reasoning that we’ve heard on climate—personal choice, and so forth,” he says. “Over time that changed and by the 1980s cases were beginning to be adjudicated differently and hold companies liable. But the science didn’t change, it stayed the same. What changed was the evidence—some of which came to light through legal discovery—that companies were engaging in obfuscation, it was clear that they knew what they were doing and were deliberate.”
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