A federal judge will hear arguments on Thursday as to whether or not to dismiss a lawsuit brought against Big Oil by two cities in California, presenting the movement to hold fossil fuel companies legally responsible for climate change with its toughest challenge yet.
The arguments will pit attorneys from the cities of San Francisco and Oakland against five of the largest fossil fuel companies in the world, including Shell, BP, and ExxonMobil. The fossil fuel companies are set to argue that the lawsuit — which seeks to recoup costs associated with climate adaptation, like raising roads to avoid inundation from sea level rise — should be dismissed. Among other reasons, the companies argue cornerstone environmental laws like the Clean Air Act preempt cities from suing companies under federal common laws like public nuisance claims.
No climate lawsuit seeking to hold fossil fuel companies liable for their role in climate change has ever made it past this stage, meaning that if the cities succeed in preventing their case from being dismissed, climate litigation will enter into completely uncharted territory.
“If it does not get dismissed, that’s a big deal,” Anne Carlson, a law professor and director of the the Emmett Institute on Climate Change and the Environment at UCLA, said on a press call Wednesday.
Carlson noted that a number of cases brought against fossil fuel companies during the George W. Bush administration were all dismissed early in the court proceedings, meaning that plaintiffs never had a chance to question fossil fuel leadership or obtain internal company documents through the discovery process — a step that was crucial to helping plaintiffs build a compelling case against tobacco companies in the 1990s.
The current wave of climate liability lawsuits — of which San Francisco and Oakland are merely two of a dozen similar cases pending in courts around the country — has often been compared to tobacco litigation, because the lawsuits seek to hold companies financially responsible for knowingly producing a product that caused harm to communities.
In the climate lawsuits, plaintiffs are arguing that by extracting and selling fossil fuels, as well as knowingly misleading the public about the potential impact the burning of those fuels could have on the climate, fossil fuel companies have created a public nuisance for which they should be held liable.
Plaintiffs have tried this tact before, filing a spate of lawsuits in the 2000s that tried to hold both fossil fuel producers and utilities responsible for climate change. One of those cases — American Electric Power Co. v. Connecticut — made it all the way to the Supreme Court, which decided in 2011 to dismiss the case on the ground that the Clean Air Act already gave the federal government authority to regulate greenhouse gas emissions, thereby displacing any legal claims under federal common law.
But legal experts note a couple of key differences between earlier climate liability lawsuits and the current wave. For one, the science connecting the actions of particular fossil fuel companies to distinct climate impacts — especially sea level rise — has become more sophisticated in recent years. Scientists can now reasonably trace the percentage of carbon emissions in the atmosphere back to a few key producers. U.S. District Judge William Alsup — who will hear Thursday’s arguments — requested a climate science “tutorial” earlier this year as a way to familiarize himself with the science.
Unlike earlier cases, which asked the court to compel companies to change their behavior by switching away from more carbon-intensive sources of power, the recent liability lawsuits ask that fossil fuel companies pay into a fund to help offset the cost of climate adaptation. According to Carlson, because that remedy is more specific than previous cases, it’s possible that courts could look more favorably upon it, because “these nuisance cases look more like traditional lawsuits.”
Ahead of Thursday’s arguments, the Department of Justice filed a brief supporting the fossil fuel companies’ argument that the lawsuit filed by Oakland and San Francisco should be dismissed.
The brief, filed on May 10, argues that the lawsuit “has the potential to interfere with the United States’ ongoing attempts to address the impacts of climate change, both domestically and internationally.” The brief cites the Clean Air Act, “which provides the Executive Branch with authority to respond to climate-change effects by regulating greenhouse gas emissions” and notes that the Environmental Protection Agency (EPA) is in charge of carrying out those regulations.
It’s unclear, however, whether the court will find that argument compelling, as the Trump administration has publicly taken steps to undermine climate action both domestically and internationally. Last year, President Trump announced that he would be withdrawing the United States from the Paris climate agreement; he also ordered the EPA to begin repealing the Clean Power Plan, which was the Obama administration’s attempt to regulate greenhouse gas emissions under the Clean Air Act.
“A court could be pretty skeptical to say that plaintiffs should not go forward given that the federal government has taken steps to rollback regulations,” Carlson said. “So it could have some legal bearing.”
Whatever the court decides, it’s almost certain that both sides will appeal the decision — which means that the cities’ climate litigation is likely to survive beyond Thursday. What form it survives in, however, remains to be seen.