This [court] order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. However,…—Judge Wm. Alsup
Judge Alsup has spoken. Chevron, ExxonMobil and other of the world’s oil companies, large and small, are breathing easier as a result of his dismissal of the City of Oakland and the People of the State of California v BP P.L.C. et al. The suit is one of several recently filed in both federal and state courts by cities, counties, and states alleging they have suffered a redressable harm at the hands of the big oil.
In addition to Oakland and a series of other suits pending in California, New York City has initiated a case against ExxonMobil as has the City of Boulder, Colorado. The plaintiff cities and states are following the same paths taken earlier in tobacco and asbestos suits. Those cases were pursued under state nuisance laws, which are more settled than federal.
Nuisances are considered tortious acts for which compensatory and punitive damages may be awarded. In law, a tort is defined as an act or omission giving rise to an injury or harm to another. Specifically, under federal common law, a public nuisance is an unreasonable interference with a right common to the public good.
Although the Oakland case began in the state court, the defendant oil companies prevailed in their motion to have it removed to the federal level. The removal order was the defendant oil companies’ first victory in the case and was issued by Judge Alsup; the same judge who just issued the dismissal order.
The reason Alsup granted the removal order from state to federal court was straightforward. He worried that if a precedent was established to hear these types of cases in state courts, it could lead to [a] patchwork of fifty different answers to the same fundamental global issue [which] would be unworkable…. Given that other local jurisdictions, e.g., New York City, are bringing similar suits against the major oil companies, the patchwork problem is hardly hypothetical.
The Oakland case was a long-shot from the start. No plaintiff has ever succeeded in bringing a nuisance claim based on global warming—either in a state or federal court.
Why the case was filed, and the reasons why it was dismissed are essential for climate defenders to understand as they impact the larger climate policy debate in the court of public opinion. Both “whys” are the focus of this article. Also addressed, is why the Oakland case is not dispositive of other climate-lawsuits, and why it should be seen as strengthening the case for climate action in the court of public opinion.
Why—the case filings–
The easiest of the two questions to answer is why are states, counties, and cities now suing big oil companies over climate change? The cases are a direct result of the failure of the nation’s political decisionmakers to put in place an integrated national energy and environment policy. I and others have written mountains on the problem and have even suggested some solutions. (see www.civilnotion.com)
Overtures to Congress and the President made by governors, mayors, county commissioners, environmental organizations, the heads of major US technology corporations, family of the president and foreign heads of state have failed to move the nation any closer towards having a national energy and environment policy in place. Even the overtures of the auto industry and a growing number of utilities not to rescind the Clean Power Plan and Corporate Average Fuel Economy standards have fallen on deaf ears.
Why a torts case?
Why the Oakland case was brought as a public nuisance (tort) when none have succeeded in the past is another matter. Political gridlock has naturally led to the pursuit of alternative advocacy paths. With two of the three branches of government unwilling to recognize or combat climate change, only the judicial branch remains. Climate rights are still a nascent area of the law.
There is no judicial decision—federal or state—that establishes the right of citizens, cities, counties or anyone else to a habitable environment. Should the right be established in a court proceeding under any of several theoretical scenarios, e.g., constitution or tort, it would have a profound impact on the policy debate as even the current administration would be obliged to devise and deploy a national environmental defense system at some level of protection.
There is a general search going on for new, sometimes referred to as novel, approaches to the judicial bench to offset the persistent political gridlock. The cases are not all the same. Cities are pursuing tort actions; the plaintiff youths in Juliana are asking the court to expand constitutional due process protections and to establish the validity of the public trust doctrine to order parochial and partisan politicians to do their duties of protecting the nation from known harms.
Some are in federal court; others are in state courts. At some point, it is the collective hope of the climate community that one or all the various approaches—political and judicial—will be up to the task. There are also cases in Europe, Latin America and the Asia Pacific region pending before courts of human rights.
Tort cases like Oakland have a secondary purpose, I believe. Climate change is still an abstract theoretical concept for most people to get their heads around. There are tons of studies showing that even many climate defenders don’t believe the threat of warming is imminent.
The tort cases serve to identify some of the current consequences of climate at the community and state level, e.g., the need for new infrastructure in anticipation of more severe storms. Imperial Beach, for example, is one of the California jurisdictions suing big oil[i]. The case arises out a 2016 study that concluded the community is in danger of being washed over by the ocean if it doesn’t erect sea walls costing at least $50 million. A sum much beyond the ability of the tiny community’s 25,000 to pay.
In asking for damages, the plaintiffs are converting the concept of climate change in to cold hard cash. Quantifying the cost in sums that generally everyone understands and for which taxpayers will pay introduces both a human and proximate element of some urgency into the climate debate.[ii]
The requested remuneration, however, cuts against as well as with the grain.
Why—the judge’s dismissal–
The simplest reasons Judge Alsup dismissed the case have to do with the consequences of any potential damage award to society and the defendant. They also involve a determination by the court as to whether the harm experienced by the plaintiffs from the defendant’s actions is greater than anyone should be required to bear without compensation.
Alsup termed the plaintiff’s legal theory breathtaking in its sweep, as it included the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew that the[ir] combustion…contributed to…global warming.
For the climate-tort cases, like many things in this life, size can matter. Consider the amount of money the oil companies would be obligated to pay just in California for the damages wrought by rising seas[iii].
Rising tides not only lift all boats they inundate a lot of lands and destroy essential infrastructures. Crumbled highways, submerged office buildings, and homes leading to insurance claims and lost tax revenues, health epidemics from waterborne disease are all part and parcel of global warming.
A ruling in the case would not be limited only to the named plaintiffs and defendants. A finding for the plaintiffs would throw open the door to hundreds, likely thousands, of lawsuits. Cases not merely against the oil companies but any entity that supplied fossil fuels with knowledge of the problem, i.e., the contribution of carbon emissions to global warming. An expanded class of defendants could include home heating companies, the local gas station, industrial users of coal or petroleum-based chemicals, and any number of others in the economic value chain.
Damage awards in nuisance cases do not automatically follow a finding of tortious conduct by the plaintiff(s). Several factors need to be considered. For example, the court must decide whether it is unreasonable for the defendant to engage in the conduct without paying for the harm done. It is also incumbent upon the court to consider “[i]f imposition of this financial burden [damage awards] would make continuation of the activity not feasible.”
Judge Alsup pointed out that the sale of fossil fuels is lawful in every nation on earth. The companies were not being charged with unethical sales practices but of selling something they know to be harmful to the health and welfare of the nation’s people and environment.
In rendering his decision, Alsup considered whether the sale of fossil fuels was without value both to the plaintiffs and the society at large or whether it benefited the plaintiffs and the rest of society:
…against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefited.
The negative he is speaking of is global climate change. Unlike a certain unnamed president and his many minions, Alsup was interested in understanding the science behind the claims that global warming is caused by human action and of potentially cataclysmic consequences.
Oakland v BP will forever be remembered as the first time the causes and consequences of climate change were called into evidence by a US court of law. Before rendering his decision in the case, Judge Alsup ordered the parties—both the oil companies and the city of Oakland and the State of California—to tutor him on climate change.
Alsup was calling for a sweeping view of the evidence behind the plaintiff’s claim that climate-scientists are as sure as one can reasonably be about nature of global warming—who’s causing it and what consequences can be expected. Over the course of the tutorial, the classic climate defenders’ arguments were presented as facts. When I say classic, I am speaking of what Dr. Hansen predicted 30 years ago before a Congressional and what he is saying today.
Perhaps, to everyone’s surprise, the oil company defendants agreed with Oakland’s attorneys—with little or no hesitation.
None of the courtroom participants from either side quoted EPA Administrator Pruitt claiming climate-science is unsettled or the Republican chairman of the House Committee on Science, Space and Technology, Lamar Smith (R-TX) who thinks it is a good thing. The agreement of the plaintiffs and the defendants in the case stand in stark contrast to the debates in Congress and the nonsense that flows from the White House.
In a court of law, however, the law of society continues to trump the laws of science—at least for the moment. The case law pertaining to the award of damages in tort cases, even when the harm is being done by the defendant with knowledge, prohibits the award of damages if they would make it impossible for the defendant to continue its activities.
The tens of trillions of dollars required to pay for current and future climate-related damages that follow in the wake of a warming planet would undoubtedly sink the oil companies and most of the world’s economies along with them.
The Oakland decision highlights the limits of the judiciary in climate matters. Judge Alsup fully understood and recognized the realities of climate change. Based on the reports following the climate tutorial, it was clear he steeped himself in the subject matter before the event and knew nearly as much as the experts who presented the tutorial. Alsup even went so far as to include the history and science of global warming going back 120 years to recount the works of John Tyndall, Guy Stewart Callendar and the oceanographer Roger Revelle in his ruling for the oil companies.
In the final analysis, Judge Alsup accepted the science behind global warming and conceded that federal courts have authority to fashion common law remedies for claims based on global warming. For Alsup, the problem at hand deserves a solution best addressed by the federal judiciary’s co-equal branches of government.
Why Oakland v BP is not the last word
The decision in Oakland is neither dispositive of the other nuisance cases being brought by other states, counties, cities, and communities against fossil fuel companies, nor is it without positive value in the overall efforts of climate defenders.
There remain a fair number similar cases in both state and federal courts. Although sharing the same judicial approach, each of the cases has its own set of circumstances and a different set of judges. As mentioned earlier, state nuisance laws are more settled than federal and may be more flexible in their application.
Take heart perhaps that in a courtroom just down the hall from Judge Alsup, the San Mateo, Marin County and City of Imperial Beach nuisance cases were ordered back to the state court. Same types of cases, similar claims—different judge. Those cases are pending.
It is vital for climate defenders to understand the legal landscape and how the plaintiffs in these cases—whether Oakland or Juliana—are exploring new legal grounds for establishing the right to a habitable environment and, in turn, obligating government to protect those rights. Win lose or draw these cases have value.
I am not just alluding to experiential value in terms of legal approaches but to establishing a public record of admissions by fossil fuel companies, the science community, and even the government’s own experts that the science of climate change is not in dispute—no matter what Scott Pruitt, Roger Zinke, or The Donald “hisself” might have to say about it.
John Coté, a spokesman for the San Francisco city attorney, had it right when he said:
Our litigation forced a public court proceeding on climate science, and now these companies can no longer deny it is real and valid.
And so will future litigation!
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[i] The case has been filed in state court.
[ii] It should also be noted that by identifying and quantifying the alleged damages the plaintiffs are meeting several of the requirements needed for standing to sue in a court of law. See for an expanded discussion.
[iii] The plaintiffs were alleging a specific nuisance, i.e., rising sea levels induced by global warming.
Lead image: Courtesy of Unsplash/Oil rig entering Cape Town Harbour/Clyde Thomas@clydeo
- A note to readers: The retirement of Supreme Court Justice Anthony Kennedy promises to have a profound impact on future SCOTUS rulings in climate law cases. Remember that Massachusetts v EPA and other seminal cases were decided by 5-4 majorities. The next Trump nominee will surely be from the ranks of very conservative jurists. Look to Civil Notion in the coming weeks for insights and analysis.
