Climate science gets its day in court in California

A federal judge in California has ordered cities suing fossil fuel companies — and the companies themselves — to present information about climate science.

California homes in Newport Beach could be at risk due to sea level rise. A handful of California cities are suing fossil fuel companies for damages associated with sea level rise. (CREDIT: David McNew/Getty Images)
California homes in Newport Beach could be at risk due to sea level rise. A handful of California cities are suing fossil fuel companies for damages associated with sea level rise. (CREDIT: David McNew/Getty Images)

What caused the various ice ages, what caused the ice to melt? Why does carbon dioxide absorb infrared radiation, but oxygen and nitrogen do not? Does carbon dioxide in the atmosphere reflect any sunlight back into space, thereby keeping sunlight out of the atmosphere?

These questions might seem like they’ve been ripped straight a science exam, and, in a way, they are — they’re just a few of the specific questions that a federal judge in California is asking two sides of a climate lawsuit to answer during a scheduled climate science tutorial taking place in San Francisco on Wednesday.

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Scheduled to stretch for five hours, the tutorial will be an opportunity for both attorneys representing the cities San Francisco and Oakland — which filed a lawsuit last year against five fossil fuel companies for their role in climate-fueled sea level rise — and attorneys representing some of the largest fossil fuel companies in the world. Both sides will state their client’s position on some foundational questions of climate science.

Ordered by U.S. District Judge William Alsup, the tutorial aims to provide an overview of climate science in two parts: a history of climate science and a discussion of the best-available science today.

Broadly speaking, it is uncommon,” Ted Lamm, research fellow at the Center for Law, Energy and the Environment at Berkeley Law, told ThinkProgress. “This is an issue of major scientific impact that has not really been tried very much in the courts to date. It’s a bit of an unusual move but possibly in accordance with the lack of litigation on the topic.”

It’s unusual for judges to request tutorials on a specific subject, though not unheard of. Alsup himself has done it twice before, teaching himself how to code in order to better understand a lawsuit between Oracle and Google, and requesting a tutorial on self-driving cars before presiding over the lawsuit between Waymo and Uber. But neither programming language nor autonomous vehicles have incited the kind of political debate that follows climate science, making Wednesday’s tutorial unique even by Alsup’s standards.

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A few weeks before the tutorial, Alsup released a set of eight questions that he wanted answered — broad questions involving how carbon dioxide traps heat in the Earth’s atmosphere, for instance, or how the melting of ice during previous geological eras contributed to sea level rise.

The fossil fuel companies being sued by San Francisco and Oakland, by and large, all support the scientific consensus that the climate is changing and that mankind is responsible for those changes — but it’s likely that they will push back on the plaintiff’s argument that the companies knowingly created a public nuisance by selling their products despite internal science indicating that fossil fuels posed a threat to the climate.

Chevron, one of the companies named as a defendant in the lawsuit, has said that it will “provide a neutral assessment of the science” based on assessments from the Intergovernmental Panel on Climate Change (IPCC). The latest IPCC report, finalized in 2014, found that it is “extremely likely” that most of the warming that has occurred since the 1950s is a result of human activity.

Still, even if fossil fuel companies accept the basic scientific facts of climate change, the Union of Concerned Scientists’ Peter Frumhoff said that the tutorial will be valuable because it will offer a glimpse into how oil and gas companies might plan on defending their actions — including accusations that they willfully mislead the public on climate science for decades — should the case proceed to trial.

I don’t expect the companies to speak in climate denialist tones,” Frumhoff said. “But depending on what questions the judge asks I think this will be an interesting moment to hear what they say about climate science and their history of their understanding of climate science.”

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While fossil fuel companies likely won’t bring denial talking points into the tutorial, several prominent fossil fuel industry allies — including the Heartland Institute — have filed briefs in support of climate denial talking points.

In one brief, filed by the Heartland Institute and Dr. Willie Wei-Hock Soon, among others, argues that there is “no agreement among climatologists as to the relative contributes of Man and Nature to the global warming … that has occurred in the two-thirds of a century since we first began to influence climate in 1950.”

Another brief, filed by William Happer, Steven Koonin, and Richard Lindzen — all scientists that have publicly cast doubt on the scientific consensus around climate change — says that “the climate is always changing” and “it is not possible to tell how much of the modest recent warming can be ascribed to humans.”

It’s unclear how the fossil fuel industry will handle these briefs, which seem to run counter to their purported goal of providing an impartial overview of climate science. Alsup, for his part, has requested that all parties involved in filing the briefs disclose any funding they have received for relevant climate science research, including funding from the fossil fuel industry.

Those disclosures will likely reveal the close relationship between the fossil fuel industry and prominent climate deniers like Soon and Happer — both of whom have received funding for work meant to cast doubt on the scientific consensus on climate change.

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As part of their case against the companies, plaintiffs point to years of financial support between Exxon and conservative, climate-denying think tanks like the Heartland Institute as proof that fossil fuel companies willfully manipulated public perception of climate risks despite internal science.

Beyond forcing fossil fuel companies to present their assessment of climate science before a court, Berkeley’s Lamm said that the tutorial will likely prove valuable for both current climate liability plaintiffs — including a handful of cities and counties throughout California, as well as New York City — and future cities and counties considering potential legal action.

To date, the industry has been able to only make those pronouncements in their own forums of their own choosing,” Lamm said. “This is an example of what an industry discussion of climate science in a courtroom looks like.”