February 5, 2020

Los Angeles Times: California communities suing Big Oil over climate change face a key hearing Wednesday

By Susanne Rust for the Los Angeles Times

Sea-level rise. Floods. Storm damage. For nearly three years, a group of California communities has been suing fossil fuel companies for their contribution to climate change and the damages resulting from it.

On Wednesday, in Pasadena, a key federal court hearing could decide the fate of those lawsuits. Two separate coalitions of California local governments are arguing to have their suits heard in California state courts, which compared to their federal counterparts, tend to be more favorable to “nuisance” lawsuits.

The fossil fuel companies want the cases heard in federal courts, arguing they are more appropriate venues for disputes that have international dimensions. For both sides, the stakes are formidable.

“A decision in favor of the cities would not only green-light these cases to move forward… it would clear the way for a potential wave of filings in the Ninth Circuit,” said Richard Wiles, executive director of the Center for Climate Integrity, a climate change advocacy group supporting the local governments.

The California lawsuits are part of a wave of litigation against fossil fuel companies, alleging they not only contributed to climate change but actively worked to discredit climate science and block limits on greenhouse gas emissions. The litigants hope the courts will act in the absence of meaningful governmental action, but so far, their success rate has been mixed.

In 2018, a federal judge dismissed New York City’s lawsuit against five oil companies. Last month, a federal appeals court dismissed litigation brought by a group of young people seeking a ruling that might compel the federal government to reduce emissions.

In California, both lawsuits are similar. They want companies such as Chevron and ExxonMobil to pay for infrastructure and property damage caused by sea level rise and other climate change impacts, as well as the costly adaptations required for safeguarding. And although the two suits will be heard by the same 9th District Circuit Court panel on Wednesday, they’ve had very different trajectories.

In one case, filed by the cities of San Francisco and Oakland against the fossil fuel companies, Judge William Alsup of the Federal District Court in San Francisco dismissed the suit. After instructing both parties to provide him with a tutorial on climate change science, he ruled the courts were not the proper place to deal with issues of global scale. The cities appealed that decision. And they’ll argue Wednesday that the case should be heard and moved to state court.

In the other case, which was filed by the cities of Imperial Beach, Richmond and Santa Cruz, as well as the Northern California counties of San Mateo, Santa Cruz and Marin, a federal judge, Vince Chhabria, also of the Federal District Court in San Francisco, remanded the case to state court.

The fossil fuel companies, led by Chevron, appealed that decision. Casey Norton, a spokesman for ExxonMobil, would not comment directly on the case, but pulled quotes from the fossil fuel companies’ opening brief, including this one: “Federal common law, not state law, must govern such disputes because of the ‘overriding federal interest in the need for a uniform rule of decision.’”

Sean Comey, a Chevron spokesman, referred to the same filing, and highlighted this quote: “State tort law is not an appropriate vehicle — and state courts are not an appropriate forum — for regulating worldwide energy policy or punishing lawful, global commercial activity that is vital to every sector of the global economy.” But the cities and counties say the issue is local and therefore should be considered by a state court. They also say it isn’t about regulating the fossil fuel companies, but about getting them to pay for the harm they have caused.

“This isn’t about changing laws. It’s about getting them to pay for the damages they knowingly created,” said Imperial Beach Mayor Serge Dedina. Dedina said Imperial Beach is getting pummeled by waves and sea level rise, and flooding has become an increasing threat to coastal areas. He noted that while the fossil fuel companies rake in billions of dollars every year, his cash-strapped city is likely to end up spending millions repairing damaged infrastructure such as roads and beaches, as well as millions more protecting its four miles of shoreline.

He said his city’s annual general funds budget of roughly $19 million is roughly the same as the yearly compensation for Darren Woods, ExxonMobil’s chief executive. Tom Butt, mayor of Richmond, said the situation is similar in his San Francisco Bay city, where Chevron has a refinery. In recent years, his views on climate change threats have changed.

“When we first went down this road it was sea level rise I was worried about,” he said. “Now it’s the fires, and the smoke that has come down into the city. It’s a major disruption. We’ve had to close schools and businesses.”

Pointing to reporting from the Los Angeles Times and Inside Climate News, the local governments’ attorneys argued that fossil fuel companies not only knew about climate change for decades, but actively tried to mislead the public and governments about the science — and its potential effects.

“This is just like tobacco, lead paint, asbestos, opioids, what have you… where substantial evidence has developed that they knew about this a long time ago and instead of disclosing it or trying to do something about it, they went all out and tried to hide effects and sell it,” said Butt.

Other local and state governments across the country are also actively seeking damage compensation from the fossil fuel companies, including Baltimore; Boulder, Col.; King County, Wash.; New York and Rhode Island. The Pacific Coast Federation of Fisheries Assns., a trade organization, has also sued for damages.

“There is a lot at stake in this appeal,” said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law. “If the cases can move forward in state court, the courts are likely to take the plaintiffs’ claims seriously, and this may affect prospects for cases in other states as well.”

Hecht’s environmental law clinic provided legal analysis for the plaintiffs in some of the cases. He said a 2017 ruling by the California Court of Appeal held former lead paint manufacturers liable to a collection of California local governments that sued them, in a “nuisance” case similar in structure to these.

“Plaintiffs in the climate liability cases are pursuing a similar theory, and there are real parallels between the facts here and the facts in the lead-paint cases,” he said.

Douglas Kysar, a professor at Yale Law School, said the arguments made Wednesday are unlikely to sway any judges, who are likely more interested in the briefs and other filings already submitted. However, the hearings provide the rest of us an opportunity to ask questions about what the future holds for climate liability, he said. “If the industry is not going to help shoulder the massive cost of adapting to climate change, who is going to be left holding the bag?”

A ruling is expected before the end of the year.

Corporate Accountability
Our Movement Needs You
You’ll receive email action alerts from Corporate Accountability.

Corporate Accountability is looking for a new Executive Director