When New York City announced last week that it would be suing five of the world’s most powerful fossil fuel companies for their role in creating — and perpetuating — global warming, environmental activist Bill McKibben lauded the move as “a major tipping point” in the movement to companies accountable for climate change.
Now, the second largest city in the United States appears to be following New York’s lead, exploring the potential for filing a similar lawsuit against fossil fuel companies. On January 13 — just three days after New York publicly announced its lawsuit — two Los Angeles city councilmembers introduced a motion asking the City Attorney to look into legal options against fossil fuel companies, as well as prepare an official legal statement in support of New York City’s case.
Councilmember Mike Bonin (D), who introduced the motion along with Councilmember Paul Koretz (D), told ThinkProgress that the inspiration for the motion came directly from the example set by New York.
“When I saw the news about what de Blasio was doing, it made me say, ‘Why the hell aren’t we doing this here?’” Bonin said. “We like to think that the winds blow from the West to the East, but occasionally, the winds come back.”
Bonin, who represents the western part of Los Angeles, including many of the city’s coastal neighborhoods, called the potential lawsuit part of a “multi-pronged” approach to tackling the issue of climate change through city government. In 2016, the city council unanimously supported a motion to transition to 100 percent renewable energy, and that the local transportation agency has taken steps to transition its municipal fleet of buses from diesel engines to electric. Los Angeles Mayor Eric Garcetti (D) has pledged to push forward with local climate action in the face of the Trump administration’s federal agenda, which has prioritized fossil fuel extraction over renewable energy.
“We are facing a federal government that is engaged in — if I was going to be charitable, a dereliction of duty, but I think it’s actually a deliberate sabotage our our planet,” Bonin said. “It’s incumbent upon the cities to lead.”
If Los Angeles does decide to file a lawsuit against fossil fuel companies, it would join a group of seven other cities and counties — which, save for New York, are all located in California — seeking to hold companies similarly accountable. Six of those cases claim damages associated with climate-fueled sea level rise, and ask that fossil fuel companies pay into a fund to help offset the cost of updating infrastructure to withstand rising waters. Only Santa Cruz — which filed its lawsuit in late December — is attempting to tie the action of fossil fuel companies to not just sea level rise, but changes in the hydrologic cycle resulting from an increase in atmospheric greenhouse gases — things like drought and wildfire. While it’s unclear what route Los Angeles would take if it chooses to pursue a lawsuit, Southern California recently witnessed the largest wildfire in modern recorded history this December, fueled by a combination of above-average temperatures and below-average precipitation that scientists say is consistent with climate change. To make matters worse, in the wake of December’s Thomas Fire, parts of Southern California experienced heavy rain that caused the scorched soil to turn into devastating mudslides, killing 20 people.
“It’s personal for me,” Bonin said about climate change. “We’ve been living through a couple months of real hell with wildfires and mudslides, and it really underscores the importance of not just getting off of fossil fuels but taking whatever steps we can to get there.”
Unlike New York, cities and counties in California face favorable legal precedent for at least one of their charges against fossil fuel companies: public nuisance. In November, the California Court of Appeals ruled that three paint companies had created a public nuisance when they manufactured and sold lead paint, despite knowing that the product was dangerous to public health. Cities and counties filing lawsuits against fossil fuel companies are taking a similar approach, alleging that the companies created a public nuisance when they extracted and sold fossil fuels despite evidence that the use of those fuels could lead to climate change. Bolstering the cities’ suits, according to legal experts, are two investigations published in 2015 by Inside Climate News and the Los Angeles Times, which revealed that fossil fuel executives at Exxon were warned of the dangers of fossil fuel use as early as the 1970s, but continued to fund misinformation campaigns meant to cast doubt on the science.
In many ways, the growing wave of litigation against fossil fuel companies mirrors litigation brought against tobacco companies in the 1990s, which eventually resulted in a $365.5 billion settlement to recover medical costs associated with the health impacts of tobacco use. Like the climate lawsuits, a coalition of state attorneys general claimed that the tobacco companies had created a public nuisance when they pushed their products despite knowing that they caused adverse health effects. And like the climate cases, the tobacco litigation hinged on the idea that tobacco executives willfully mislead the public, despite information that their products were harmful.
“The similarities with the tobacco companies resonated so much with me, the willful disregard for our environment and neighborhoods,” Bonin said.
But public nuisance lawsuits — as they relate to climate change — have often faced an uphill battle in the courts. That’s partly because courts have found, at least at the federal level, that the Environmental Protection Agency’s authority to regulate greenhouse gas emissions supersedes claims of federal public nuisance, and partly because in the past, it has been difficult to tie certain climate consequences directly to the actions of a particular company.
In recent years, however, the science of attributing specific events, or consequences, to climate change has become increasingly strong, with scientists now able to pinpoint with near certainty the probability that climate change made a particular event stronger, more devastating, or more likely to occur. At the same time, a growing body of science now exists connecting fossil fuel emissions back to the actions of specific companies; known as the Carbon Majors, these 100 companies are responsible for more than 70 percent of the world’s greenhouse gas emissions since the 1980s.
Still, the cities bringing these lawsuits are likely to face stiff opposition in court from fossil fuel companies. Exxon has already responded to several of the California lawsuits by filing a petition in federal court asking to depose government officials involved in the “abusive law enforcement tactics and litigation” brought by the cities. Legal experts have noted that the petition has little chance of succeeding, but could be a chilling mechanism meant to dissuade other cities from filing similar lawsuits.
The tactic, however, does not appear to be working. New York City filed its lawsuit just two days after Exxon’s federal petition, and Los Angeles’ motion was introduced just three days after that.