Are oil and gas companies legally responsible for the harm caused by climate change?
That is the question presented in a lawsuit filed in January 2018 by the City of New York against BP, Chevron, ConocoPhillips, Exxon Mobil, and Royal Dutch Shell. According to the lawsuit, those companies are the five largest, investor-owned producers of fossil fuels in the world, as measured by the cumulative carbon and methane pollution generated from the use of their fossil fuels. Similar lawsuits have also been filed by other cities, including Oakland and San Francisco, against the same companies.
According to New York City’s complaint filed in federal court in Manhattan, the defendant companies knew decades ago that the fossil fuel products they produce and sell were altering the atmosphere and would cause a dire global warming problem. The complaint alleges that by the late 1970’s or early 1980’s, if not earlier, the companies knew that averting dangerous climate change required reducing the use of fossil fuels. Beginning in the 1950’s, according to the complaint, the defendants and their trade association, the American Petroleum Institute (API), conducted research showing that fossil fuels pose a grave threat to the global climate. A March 1982 report commissioned by API projected potentially “serious consequences for man’s comfort and survival.”
Despite this knowledge of the risk of catastrophic harm, the complaint alleges that the defendants continued with fossil fuel exploration, production, marketing, and sales, while orchestrating a campaign of deception and denial regarding climate change. At the same time, the City claims that the defendants have used their knowledge of climate change science to protect their own business assets from the effects of climate change.
The complaint states that climate change is here and is harming New York City because of increased hot days, flooding of low-lying areas, increased shoreline erosion, and higher threats of catastrophic storm surge flooding. As a result, the City is spending billions of dollars on measures to protect public health and safety, property and infrastructure, and will need to continue to take more costly preventative action. The purpose of the lawsuit is to recover from the defendants these past, present, and future costs that the City is spending to protect the health, safety, and property of its residents from the impacts of climate change.
The Charge: Public Nuisance
The City alleges that the defendants are liable under the state law doctrine of “public nuisance.” While “public nuisance” may sound like the ultimate understatement, it is a centuries-old legal claim that courts and lawyers take very seriously. As a legal concept, a public nuisance consists of conduct that offends, interferes with or causes damage to the public in the exercise of rights common to all in a manner that interferes with the use of public property or endangers or injures the property, health, safety or comfort of a considerable number of people. Public nuisance claims have been widely used in a variety of significant cases, including lawsuits relating to environmental contamination, illness caused by lead paint, injury claims against gun manufacturers, and the current litigation against Big Pharma for negligent distribution of opioid medications.
The Ask to Dismiss by Fossil Fuel
In response to the lawsuit, the defendants filed motions asking the court to dismiss the case based on a variety of legal grounds, including their argument that: claims involving the effect of greenhouse gases on the environment must be considered under federal, rather than state, law; that federal law does not permit the type of claims that the City is pursuing; that the claims infringe on the federal foreign affairs power, are barred by the Constitution, and are preempted by federal law, e.g. The Clean Air Act. In addition, the companies contend that the case should be dismissed because it presents political questions that are inappropriate for judicial resolution. Similar motions to dismiss are pending in the case brought by San Francisco and Oakland.
To Learn More
350.orgNYC held a very informative and encouraging webinar on June 7. It provided insights into the climate science being presented as evidence from lead scientist, Brenda Ekwurzel, Union of Concerned Scientists; and an in depth legal analysis from Marco Simons, Earth Rights International, which also included insight into the presiding Judge and the environmental leanings of the NYS appellate court and the federal bench. Here is a link to it.
The New York City motions will be argued before Judge John F. Keenan on June 13th. A packed courtroom and overflow room is expected. While no live tweeting will be allowed from the courtroom, lots of post-courtroom commentary is promised. Lyna Hinkel, 350.org NYC president noted this hearing represents a crossroad for NYC climate activists. After years “in the trenches” this issue is being taken seriously by individuals and institutions with signifiant power. Climate activists should celebrate this accomplishment.
A ruling is not expected immediately. No matter who wins at this stage, the litigation will continue for some time. If the companies win and the case is dismissed, the City will likely appeal. If the City defeats the motions to dismiss, the case will move into the discovery phase where the parties will obtain evidentiary support for their claims and defenses. Shades of Green will be providing you with updates. Please make sure to Follow.
Guest Blogger Stanley Silverstone is an attorney based in New City, New York, who assists employees and employers in resolving labor and employment disputes, and in understanding and complying with the multitude of local, state, and federal labor and employment laws. In addition he’s a member of the divestment committee of the Rockland /NJ chapter of 350.org, plays alto sax with the Rockland County Concert Band, and is on the Board of the Rockland Symphony Orchestra.