Climate goes to court

Posted: April 5, 2018

The pace of climate litigation is anything but glacial. We’ve seen a flurry of important developments in just the 90 days since we first blogged about the new climate litigation movement. Plaintiffs are pressuring oil companies for compensation and governments to fight climate change.

Here are three new developments in the field:

Nuisance claims against big oil survive

In a ruling that one observer said “could open the floodgates for climate-change litigation,” a federal court has made an important interpretation around nuisance claims by Oakland, San Francisco and others against five oil companies. Plaintiffs are seeking a fund to pay for sea walls and related climate-defense measures. The judge ruled that the federal Clean Air Act doesn’t necessarily pre-empt common-law nuisance claims against oil companies, contrary to the implication of a prior Supreme Court decision.

“Emissions from domestic sources are certainly regulated by the Clean Air Act, but plaintiffs here have fixated on an earlier moment in the train of industry, the earlier moment of production and sale of fossil fuels, not their combustion,” US District Court Judge William Alsup wrote in a Feb 27 decision.

Who’s at fault

Later, the same judge hosted a day in court on March 6 for a “tutorial” on climate change. An attorney for Chevron affirmed the basic tenets of human-caused climate change but rejected the notion that any individual or company can be apportioned blame.

Wrote Wired’s Adam Rogers, “[W]hat was at stake in that courtroom was not whether the effects of climate change—sea level rise, ocean acidification, weather extremes, wildfires, disease outbreaks—are people’s fault. It was whether a lawsuit could show that specific effects (floods) are specific people’s fault.”

Chevron’s attorney put it this way: “The [Intergovernmental Panel on Climate Change] does not say it’s the extraction and production of oil [that drives emissions],” Boutrous said. “It’s economic activity that creates the demand for energy and that leads to emissions.”

The stakes for oil companies and their opponents simply couldn’t be higher, Rogers concludes: “If a court attaches culpability for sea level rise in California to petrochemical companies, that might establish causation for a planet’s worth of damage, any disaster someone can plausibly connect to climate change. That’s wildfires, drought, more intense hurricanes. Attribute it to climate, and it could attribute all the way to fossil fuel companies’ bank accounts.”

Deeper reductions  demanded

In the UK, a handful of citizens are arguing for the nation to reset its carbon emissions target from an 80-percent reduction by 2050 to zero emissions by 2050.

“The [current] UK carbon target for 2050 does not match the Paris agreement goal and the government knows that,” says Tim Crosland, a barrister at a small organization called Plan B, told The Guardian. The pending litigation is about making the government take more responsibility: “It is about closing the accountability deficit which is one of the biggest problems with climate change – if everybody is responsible, nobody is responsible.”

A government spokesperson assured the BBC that the nation’s forthcoming Clean Growth plan will outline how reduce emissions will be reduced, and will be “ambitious and robust… and build on the economic opportunities across the country”.