San Francisco and Oakland are the two latest cities looking to take major fossil fuel companies to court over their role in fueling climate change. City attorneys announced on Wednesday that they had filed lawsuits with state courts in San Francisco and Alameda counties alleging that a handful of fossil fuel producers not only contributed to climate change through their business practices, but did so knowingly. The cities are asking fossil fuel producers to pay into a fund that would be used to pay for current and future damages associated with sea level rise.
The litigation mirrors lawsuits brought earlier in the summer by two California counties and the city of Imperial Beach, and signals a growing movement of cities attempting to hold fossil fuel companies accountable for their contribution to climate change through the courts.
All five lawsuits allege that fossil fuel companies have caused widespread harm to the community by knowingly releasing greenhouse gas emissions into the atmosphere, which in turn fuel climate change. Legal experts note similarities between these climate-related public nuisance claims and claims brought against tobacco companies in the mid-1990s, which alleged that the companies had created a public nuisance by knowingly selling harmful products (those suits eventually culminated in a $206 billion settlement).
Unlike previous lawsuits, however, those filed by San Francisco and Oakland are narrower in scope, asking just five major fossil fuel producers to create a fund to pay for current and future adaptation to sea level rise.
The Bay Area is particularly vulnerable to sea level rise, with much of the region built on reclaimed tidal marshes that can easily flood in times of increased rain, high tide, or rising ocean levels. To compound the problem, the region is heavily populated, with around seven million inhabitants relying on infrastructure that could periodically be underwater as climate change continues to push sea levels higher.
According to the Pacific Institute, about four and a half feet of sea level rise by 2100 — on the higher end of projections, but certainly not out of the question — would leave more than 75,000 people in San Francisco and Alameda County vulnerable to inundation. Up and down the California coast, that same amount of sea level rise would threaten $100 billion worth of existing property.
“It’s definitely a continuation of the trend, but it’s actually a very different suit both in scale and the legal strategy behind it,” Carroll Muffett, president and CEO of the Center for International Environmental Law, told ThinkProgress. “The real important thing in their doing this is that they both highlight the significant costs that cities are having to pay now, and they open up another new and really powerful legal avenue that other city, county, and state governments can pursue to recoup those costs from polluters that played a major role in creating those costs.”
The companies named in the lawsuits are Chevron, ConocoPhillips, ExxonMobil, Shell, and BP. Those companies, along with three leading coal producers, have been responsible for nearly 15 percent of all greenhouse gas emissions released since the Industrial Revolution, according to a 2016 Union of Concerned Scientists study.
Increased scientific evidence linking specific companies to greenhouse gas emissions might help bolster the plaintiffs’ case, as well as recent investigations showing that at least one defendant — ExxonMobil — was aware of the dangers of climate change as early as the 1970s, but continued to mislead both investors and the public about the threats to both the planet and the company’s assets.
“The science of climate attribution has evolved rapidly, both in the ability to attribute greenhouse gas emissions to specific producers of fossil fuels and the ability to actually map those increased emissions to changes in temperature, sea level rise, and ultimately, the harms from specific extreme weather events,” Muffett said.
The ability to better link fossil fuel companies to the harm they have caused — and continue to cause — might actually be the primary difference between the tobacco litigation of the 1990s and the new wave of climate litigation seen today, Muffett added.
“It took three decades for a court to find evidence of corporate malfeasance,” Muffett said of tobacco companies. “The real difference is that plaintiffs are going into court now with that evidence of malfeasance in hand. These plaintiffs are much farther along at this stage in litigation than tobacco plaintiffs were.”
Beyond better attribution science, Muffett points to one other way that climate litigation already seems to be outpacing tobacco litigation: the speed at which litigation seems to have moved from individual claims to claims by cities and counties. Individuals had attempted to bring civil suits against tobacco companies for decades, but the real breakthrough in tobacco litigation happened when claims moved from individual to class action to, eventually, state claims against companies — an evolution that has occurred much more quickly with climate litigation.
“If you look at the scale and speed of the litigation, while the parallels to tobacco are there, the truth is climate litigation is going much farther, much faster, and the universe of potential plaintiffs and the scale of their potential damages is much greater,” Muffett said.
And while the first wave of climate litigation cases brought by cities against fossil fuel companies have been based in losses from sea level rise, as attribution science becomes stronger, and the links between climate consequences and the actions of fossil fuel companies becomes clearer, the scope of these kinds of claims will likely widen. Muffett suggested that places like Puerto Rico or the Gulf Coast — which are reeling from a series of devastating hurricanes — could potentially bring similar claims against fossil fuel companies in the future.
“We will see more of these suits and we will start seeing them faster, and the scale of what they address is only going to grow,” he said.