The use of the court system to address what is at its root a political and social problem is not only misguided, but dangerous. I have discussed in prior articles the danger implicit in using public nuisance law to effect political change.
California plaintiffs in the current climate change litigation are effectively blaming a handful of large industrial concerns for the evolution of our present-day civilization when the blame, if blame is even the appropriate term, should be collectively shared by countless other “responsible” parties. At a time when USEPA is scrubbing from its website any and all references to climate change or global warming, and discouraging its staff scientists from even publically addressing the subject, it is perhaps not surprising that communities adversely impacted by global warming are striking back against a perceived attack on established science by the federal government.
According to NASA, the “current warming trend is of particular significance because most of it is extremely likely (greater than 95 percent probability) to be the result of human activity since the mid-20th century and proceeding at a rate that is unprecedented over decades to millennia.” Since the mid-19th century, the heat-trapping nature of carbon dioxide and other gases has increased levels of greenhouse gases and caused the Earth to warm in response. Evidence of this rapid climate change may be seen in global temperature rise, warming oceans, shrinking ice sheets, glacial retreat, decreased snow cover, sea level rise, declining Arctic sea ice, intense wind and rainfall events and ocean acidification.
Despite these existential challenges, there has been a startling absence of leadership by the U.S. Congress and the present administration to grapple with, let alone recognize, the severity of these problems. Into this breach, California counties–Marin and San Mateo–and cities–Imperial Beach, San Francisco and Oakland, have filed civil lawsuits against energy companies, including Exxon, Chevron and Shell, at times collectively referred to as the “carbon majors”, seeking untold billions of dollars in damages for rising sea levels and other alleged climate impacts. According to Oakland City Attorney Barbara Parker, “Just like Big Tobacco, Big Oil knew the truth long ago….Fossil fuel companies were aware of these effects and continued to use profits at expense of residents.” Her client, the City of Oakland, is demanding that the court hold big oil companies responsible for the costs of sea walls and other infrastructure improvements necessary to protect the City from any future consequences of climate change and sea level rising.
Failure-to-warn may be a viable theory of liability in a product liability suit, but it is altogether inapplicable in the context of a climate change lawsuit. To adopt Ms. Parker’s tobacco litigation analogy, plaintiffs are apparently claiming that the adverse effects of climate change could have been avoided if, 25 years ago, placards emblazoned at on every service station island had cautioned that the continued use of fossil fuels in automobiles may one day result in rising sea levels, global temperature rise, warming oceans, shrinking ice sheets, glacial retreat, decreased snow level and dangerous hurricane activity.
Assuming arguendo that consumers had been cautioned 25 or 30 years ago that their continued use of gasoline to power their automobiles and petroleum products to heat their homes and offices could contribute to rising sea levels, there was not at that any practical alternative. There was no nicotine patch available to wean Americans from their “addiction” to the use of products that generate greenhouse gases.
Whether oil companies should be faulted for a lack of transparency on climate change is a fair topic for debate. However, oil companies’ alleged failure to warn about climate change should have no bearing whatsoever on their legal responsibility for the remediation of coastal infrastructure across the United States. This is not tort litigation. It is a perversion of tort law concepts to argue that a group of large companies should be singled out and required to make reparations for developments, for better or worse, that have come to define the present state of our civil society.
Arguably, any lack of disclosure about climate change by the carbon majors has not slowed the international scientific consensus that has steadily evolved over the past two decades. In 2007, the U.S. Supreme Court recognized in Massachusetts v. EPA, 549 U.S. 497, that there existed a scientific consensus concerning the causal link between greenhouse gas emissions and global warming. The central problem has always been a failure of backbone or foresight (or both) on the part of our lawmakers, not industry’s failure to “own up.” Global warming has never been about whether there needs to be a global “warning”. Climate change represented “An Inconvenient Truth” long before Al Gore’s award-winning documentary film opened in 2006. It was “inconvenient” because many people were aware of the seriousness of the problems associated with mankind’s outsized carbon footprint, but just not willing to do anything about so daunting a problem.
If these climate change cases were ever to progress to a damages assessment phase at trial, the endgame would be stark and disturbing. The courtroom would resemble a war crimes tribunal more than a traditional court of law. Plaintiff lawyers would undoubtedly show the jury photographs of the utter desolation and human suffering caused by catastrophic tsunami, hurricanes and other natural disasters allegedly attributable to the defendant corporations. Arguing that the defendants’ conduct had caused thousands of deaths and left tens of thousands of more homeless, the plaintiff lawyer would seek trillions of dollars in compensatory and punitive damages. The courts should not permit these cases to go forward.