Two California counties and one California city have filed a lawsuit against 37 of the world’s biggest fossil fuel producers, seeking payment for damages brought by climate change.
The three localities are all located along California’s coast, and could see as much as 3 feet of sea level rise by the end of the century, according to a 2012 report commissioned by governors from California, Oregon, and Washington. In San Mateo county alone — the most at-risk county in California for sea level rise, according to a Climate Central report, and one of the counties involved in the lawsuit — sea level rise threatens more than $21 billion dollars worth of property.
Alongside San Mateo, Marin County and the city of Imperial Beach filed separate complaints with the California Superior Court, arguing that 37 coal, oil, and gas companies knew about the harm their products posed to the planet and continued to undermine and obfuscate the dangers of climate change.
The localities suing the fossil fuel companies hope to hold them accountable for their carbon emissions, and the subsequent damage that those emissions have caused — and will cause — to the communities.
“The environmental harm these companies knowingly caused to our precious shorelines, and the entire world, and their deliberate efforts to conceal those frightening truths, jeopardizes the public’s health and places the financial burden of those consequences on the taxpayers,” San Mateo County Board of Supervisors President Don Horsley said in a statement.
The complaint alleges that the 37 companies named as defendants — through extraction, promotion, and marketing of fossil fuels — have accounted for approximately 20 percent of all industrial carbon dioxide and methane pollution released between 1965 and 2015. Specific companies named include Chevron, ExxonMobil, BP, Shell, ConocoPhillips, and Peabody Energy, among others.
It isn’t the first time fossil fuel companies have been taken to court over a common law claim. In this case, the plaintiffs are making a claim of public nuisance, which is legally defined as something causing widespread harm to a community. Public nuisance claims were brought against tobacco companies in the mid-1990s, which ultimately resulted in a $365.5 billion settlement to recoup Medicaid costs associated with treating smokers.
Public nuisance claims as they relate to climate change have seen limited success in the past. That is due in part to the difficulty associated with linking a particular harm to a particular actor, and in part because courts have found, at least at the federal level, that the EPA’s authority to regulate greenhouse gas emissions displaces any kind of public nuisance claim through the court.
But according to Michael Burger, executive director for the Sabin Center for Climate Change Law at Columbia University, the lawsuits in California come as close to the tobacco public nuisance claims as any climate litigation in history.
“It’s really the degree to which these tort claims rely on this long history of corporate malfeasance and active collusion of industry to hide science, to obfuscate understanding, and to prevent government regulations from something that it appears to be well-aware ought to be regulated,” Burger said.
The California localities might also face an easier road than past public nuisance claims, in part because of the increased scientific evidence linking climate change to sea level rise, and an emerging understanding of fossil fuel efforts to hide climate science from the public. In 2015, investigations by both the Los Angeles Times and InsideClimate News found that ExxonMobil was aware of climate science for decades but continued to fund public misinformation campaigns and, potentially, misled investors about the threats climate change posed to their assets.
To really become analogous with the public nuisance claims that eventually resulted in the multi-billion dollar tobacco settlement, more cities, counties, or even states would eventually need to file their own lawsuits or join onto one larger lawsuit. But depending on how the suits in California move forward, Burger sees the potential for more cities and states to follow as a distinct possibility.
“The prospect of that kind of groundswell of state-based litigation would further the analogy to the tobacco litigation and perhaps represent the best chance of getting industry to buy into the idea that some kind of comprehensive settlement would be appropriate,” he said.