Alexis de Tocqueville wrote in his opus Democracy in America, “Scarcely any political question arises in the United States that is not resolved, sooner or later, in a judicial question.” De Tocqueville made the observation in 1835 but it remains equally true in modern times, as federal and state courts have taken the lead to resolve many vexing political problems, such as dismantling segregation-era laws and ensuring a rough equality of funding for public schools. Courts are particularly prone to step in when legislative and executive branches fail to act and that void creates a crisis.
In the United States today, the federal government has abdicated leadership on the central challenge of our time—global climate change. Congress has failed to enact a national climate change policy, and seems more divided on the issue than ever. The Trump administration refuses to even acknowledge the overwhelming scientific consensus that the planet is warming due to fossil fuel combustion. It has pledged to withdraw the United States from the Paris climate agreement, is now actively promoting the expansion of domestic fossil fuel production, and is working to roll back the modest steps the Obama Administration took to address the problem. Meanwhile, the costs of inaction mount and are increasingly obvious—witness Hurricanes Harvey and Irma.
Given this dereliction of duty, will courts now step in to fill this void? Five recently filed suits—and some new work by climate scientists—suggest the answer could be yes.
Seeking redress for climate damages
The cities of San Francisco and Oakland recently filed suits against five major fossil fuel producers: ExxonMobil, Chevron, BP, Shell, and Conoco Phillips. These two suits add upon suits filed in July by two California counties—San Mateo and Marin—and the City of Imperial Beach, which targeted 37 oil, gas and coal companies. These public plaintiffs, relying on cutting-edge work by the Union of Concerned Scientists, Inside Climate News, and the Columbia School of Journalism/Los Angeles Times, tell a compelling story that fossil fuel companies have known for roughly 50 years that fossil fuel products are endangering the climate, yet many engaged in a concerted effort to conceal the dangers, sow doubt about the validity of emerging climate science and fight sensible policies to address the problem, all to increase the sales of their products. These plaintiffs also ruefully note that fossil fuel combustion has doubled since 1998, when James Hanson testified to congress about the danger of global warming, and the UN established the intergovernmental panel on climate change (IPCC), making it all but impossible to now stave off serious climate change impacts.
The plaintiffs in these cases allege that climate change impacts, such as sea level rise, will harm the infrastructure that these public authorities own and operate and public properties such as beaches and parks, and threaten to displace their residents and damage their properties. Plaintiffs seek damages for the costs they have already incurred, and those that they will incur in the future to address these threats. Several of the suits also seek disgorgement of the profits from fossil fuel production, and punitive damages to punish the alleged wrongdoing.
“Tort” lawsuits like this one have been tried before without success. In one case, a group of state attorneys general sued power plants to enjoin their emissions of carbon dioxide, and in another a group of native communities in Alaska sued fossil fuel companies for damages arising from sea level rise. Two federal courts (the US Supreme Court and the Ninth Circuit Court of Appeals) dismissed these suits on the grounds that Congress placed authority for addressing climate change upon the EPA when it enacted the Clean Air Act, and there was no room for the federal courts to act upon the issue.
There are two key differences between this suit and those prior cases. First, the plaintiffs in this case are suing in state court, and alleging that the fossil fuel companies have violated state law. Thus, the question of whether federal authority to regulate climate change rests with EPA or the judiciary is not strictly relevant.
Second, the federal courts dismissed these two prior cases in 2011 and 2012, at a time when the president and federal agencies were exercising their legal authority to address climate change. Now, the president and the EPA are abdicating their authority and rolling back the policies that were put in place, in order to promote fossil fuels. Thus, it seems unlikely that the California courts would rely upon these two federal decisions to dismiss the cases.
However, the fossil fuel companies will surely raise this and many other defenses. They will also claim that suits of this kind are beyond the competence of the court to manage, that the plaintiffs are singling them out for a problem caused by many other entities, that the extraction and sale of fossil fuels was expressly allowed under the laws and brought prosperity to millions, and that they possessed no unique knowledge about climate change and were therefore under no obligation to disclose the potential harms of burning fossil fuels.
A decision on these cases is many years away, and it is far too early to predict how it will unfold. But it is not too early to note the extent to which this case—and the ongoing investigations into ExxonMobil by the New York and Massachusetts attorneys general—are already sparking an important and timely debate about who is responsible for climate change.
Until now, the focus of responsibility has been on nation states: the Paris climate agreement, for example, is based on nations committing to cut emissions and/or compensate countries that are particularly vulnerable to its impacts. This focus on nation states has elided a perhaps more fundamental question—what is the responsibility of the companies that placed fossil fuels into commerce and profited from them? One senses, even in the early stages of this litigation, that this question will eventually be answered in the courts.
A new role for scientific evidence
Lawyers and judges are not the only actors bringing climate change into the courtroom. Scientists are also playing a key behind-the-scenes role.
One of the most difficult questions a court will face, if climate litigation unfolds, is how to apportion liability for a harm that has millions of sources. The rapidly emerging field of climate attribution science helps answer that question.
In 2014, scientist Rick Heede published a paper that painstakingly traced the volume of oil, gas and coal that excavated and place into commerce between 1854 and 2010 by the 83 major investor and state-owned producers of oil, natural gas, coal, and 7 cement manufacturers. This research concluded that nearly two-thirds of all industrial carbon dioxide (CO2) and methane (CH4) emissions can be traced to the products of just 90 companies. This relatively small number augers well for the ability of a court to address the question of responsibility.
While this work is a starting point for apportioning liability, it needs further development to be useful in court. A key fact to account for is that including the fact that, unlike pollutants such as mercury or particulates, greenhouse gases do not cause harm directly. Rather, the emissions cause global warming, which then causes specific harms, such as heat waves and sea level rise. Thus, an additional step is needed to connect the global warming emissions associated with these companies’ products to the harms suffered by actual plaintiffs.
A newly published paper by UCS scientists Brenda Ezwurkel and Peter Frumhoff among others, attempts to close this gap. The authors created a model to translate the emissions traceable to these 90 companies into two particular impacts: global increases in temperature, and sea level rise.
The paper appropriately recognizes that, while fossil fuel combustion is the primary cause of these impacts, it is not the only cause; hence the model excludes sources of global warming other than fossil fuel combustion. Next, the model isolates the contribution of these 90 companies, by differentiating between the temperature increase and sea level rise that occurred with the emissions of the 90 companies’ products, and what would have occurred without them.
The authors find that approximately 50 percent of the increase in global temperature, and approximately a third of sea level rise can be traced to these 90 companies. Using the same methodology, the authors find that the top 20 investor-owned companies products caused approximately 25 percent of temperature increase, and 13-16 percent of sea level rise.
This model and methodology has a clear potential application to lawsuits, such as the ones filed by the Californian counties. For example, the County of San Mateo alleges that its waterfront property and infrastructure will be damaged by sea level rise. The County claims that that it has incurred millions of dollars to prepare for this sea level rise, expects to incur over $900 million to maintain and repair infrastructure repairs on its ocean coastline, and faces the prospect of serious or permanent inundation of property valued at $23 billion.
Assuming, for the sake of the argument, that $24 billion worth of damages can be proven, a court could use this model to find that the top twenty fossil fuel companies are responsible for 13-16 percent of this damage, or roughly $360 million. Such a model could be adapted for many other applications, including attributing a portion of responsibility for major weather disasters, such as Tropical Storm Harvey’s severe flooding of Texas.
Lawsuits are successful when the litigants remove the underbrush to point courts to a clear and manageable way to answer the questions a case poses. The work of these climate attribution scientists goes a long way towards answering the question of how to apportion liability, in the event it is determined that the fossil fuel companies have a legal responsibility for climate change.
A lawsuit on behalf of the next generation
These plaintiffs also allege that the government has violated the so-called “public trust doctrine”—an ancient principle originating in Roman law that a sovereign government must hold common natural resources in trust and must preserve them for future generations. Plaintiffs seek a court order requiring the government to implement an enforceable national plan to phase out fossil fuel emissions to stabilize the climate system.
Not surprisingly, the US government has vigorously fought back—and so, for a short while, did the fossil fuel industry through its trade associations, which joined the lawsuit as defendants but later exited when the case opened them up to the prospect of handing over internal documents). The defendants claimed that the suit should be dismissed because it raises a “political question” only the executive and legislative branches can resolve; that plaintiffs lack legal standing because climate change does not affect them in any way different than the general public; and that the government has no legally enforceable duty under either the constitution or the public trust doctrine to ensure a stable climate.
Many legal observers, including me, thought this case was a long shot. But, in 2016, a federal district court rejected all of these defenses and ordered a trial to begin in February 2018. In a breathtaking opinion, the court ruled that plaintiffs had alleged specific harm that gave them legal standing to bring the case and that there may well be a constitutional right to a stable climate system. Furthermore, the court ruled that the public doctrine does potentially require the government to at least act as a responsible steward of the oceans, if not the Earth’s atmosphere, and that the judicial branch does not have to sit on the sidelines in deference to the legislative and executive branches.
If one were looking for a stunning modern example of DeToqueville’s observation of how political disputes eventually enter the courtroom, one needn’t look beyond this opinion. The suit exemplifies one of the hallmarks of our legal system–its ability to evolve in incremental ways to meet the perceived necessities of the time. While neither the US constitution nor the public trust doctrine were developed to deal with climate change, here the court found that both could be adapted to address this problem.
Ironically, the plaintiff’s chances of prevailing are probably improved by the election. Had the defendants still been the Obama administration, or a successor Clinton administration, they would have argued that the government had acknowledged the harm of climate change and was doing what it could to address it within the confines of its legal authority. This defense would put the court in the unenviable position of second-guessing the technical and policy expertise of agencies like the EPA and the DOE, a role that courts typically try to avoid. The Trump administration, however, cannot make this argument given its decision to withdraw from the Paris climate agreement, erase (literally) the Obama climate action plan, and begin the rollback of key regulations such as the Clean Power Plan and fuel economy standards for cars.
Nevertheless, there is a long way to go on this lawsuit. The Trump administration has attempted to short circuit the trial scheduled for February by filing a premature appeal, and that request is pending. Even if that gambit fails, at trial, the plaintiffs will be required to prove allegations that the court assumed to be true at this early stage in the litigation. And if the court does find for the plaintiffs, the court will have to grapple with the difficult issue of a remedy.
The plaintiffs seek a court order requiring the US government to ensure a stable climate system but climate change, of course, is a global problem caused by many foreign states and companies, and the court has no authority over any of them. Thus, the court will have to assign some proportional percentage of responsibility to the United States government. And, even if such a standard were established, the court would then need to be prepared to oversee the process by which the United States government met it.
The future of climate litigation
It is too early to gauge the impact of the climate lawsuits now underway. But these cases are already putting the fossil fuel industry and the Trump administration on the defensive, raising an overdue debate about the legal responsibility of the fossil fuel industry, and likely heightening investor unease with fossil fuel investments.
It is well to remember that “impact” litigation is often successful even if there is never a final court order or jury verdict, and that it often takes years or even decades for success to emerge. If these cases survive early motions to dismiss them, and if similar cases are filed in other jurisdictions, these actions could conceivably create leverage for an overall settlement in which fossil fuel companies cease all climate science denial, make explicit and enforceable commitments to phase out fossil fuels over time and/or equip power plants with carbon collection mechanisms, and actively support a carbon tax, the proceeds of which can be used in part to fund preparedness and resilience for the most vulnerable communities.
So, at this moment, when the federal government has turned its back and abdicated its responsibility, we should take some encouragement from the fact that climate change lawyers and scientists are going to court. As DeToqueville pointed out long ago, this has long since been the American way.