Most environmental experts and others agree that carbon dioxide and methane are capable of absorbing infrared radiation as well as trapping heat in the atmosphere – a phenomenon commonly known as the greenhouse effect that leads to global warming.
But one thing everyone does have trouble agreeing on is who should provide the huge pile of greenbacks need to cover the costs of mitigating global warming’s effects, such as building seawalls to deal with increased coastal flooding. The $90 trillion question: Should it be the taxpayers who live in those areas, the chief emitters of greenhouse gases, or the oil and gas companies that extracted the carbon from the soil in the first place?
Although large energy companies seem like an obvious target for this type of litigation, greenhouse gases are emitted by many other industries, including agriculture, forestry, ranching and many others, all of which could face a torrent of similar lawsuits, should the California claim be successful.
Climate Change Lawsuit Asks Judge to Hold Oil & Gas Companies Accountable Lawyers in 15 states are asking a federal judge to reject a novel legal strategy used by public officials and private attorneys who seek to stick the energy industry with the bill. In 2017, a federal lawsuit was brought against the major oil and gas producers by the California cities of Oakland and San Francisco under the federal common law tort of nuisance. The lawsuit aims to make the largest fossil-fuel producers – BP, ConocoPhillips, Chevron, ExxonMobil and Royal Dutch Shell – take full responsibility for the costs. Other states, including New York, Colorado and Washington, have since followed with their own such lawsuits in an effort to punish an industry that made the emissions possible, but did not actually release them into the environment.
But this and other such lawsuits have many detractors, including the Trump Administration, which has indicated that it does not support the claims and would like to see the lawsuits dismissed. On May 10, the federal government submitted a friend-of-the-court brief to the California court urging the judge to dismiss the lawsuit and other public nuisance claims that try to get around federal law.
According to the government’s brief:
The cities ask this court to fashion a new judicial remedy to address the claimed nuisance of sea-level rise caused by emissions from the combustion of fossil-fuel products produced and sold by Defendants. The cities’ approach is novel, but their goal is not: By suing defendants that sell fossil fuels, rather than defendants that use them for combustion to create energy, the cities hope to avoid the fate of the plaintiffs in (AEP v. Connecticut), while seeking the same goal through the same theory.
The brief makes reference to a 2011 U.S. Supreme Court ruling that companies cannot be sued over their emissions under common law because the Environmental Protection Agency, not the courts, regulates them under the provisions of the Clean Air Act. To get around this legal hurdle, plaintiffs have chosen to file lawsuits against the world’s largest producers of fossil fuels (oil and gas companies) as opposed to the actual emitters of greenhouse gases (electric companies and automobile drivers).
The Bay Area and King County, Washington, as well as other coastal areas in the U.S. are expected to experience increased flooding in the coming years as global warming continues to cause sea levels to rise. In response to this threat, these areas will be required to spend millions of dollars to create infrastructure that will protect low-level populated areas, something largely ignored by President Trump in the $1.5 trillion infrastructure plan he unveiled earlier this year.
While it makes some sense that the companies who extracted the fuel and altered the planet should pay for the fallout, it remains to be seen whether the judge will subscribe to this “you break it, you buy it” philosophy, and further find that the energy industry is the one that indeed “broke” it.