Climate Change in Court: The Implications of Impending Climate Litigation

By: LOUIS SPANIAS, Acting Director of the Hixon Center

Climate and environmental issues aren’t making their way into the mainstream news as much anymore, and when they do, the news is discouraging. Amidst everything else, you might have come across the stream of controversial developments coming out of the Pruitt-led Environmental Protection Agency – most notably, the decision to roll back emissions and fuel economy standards for automobiles (deemed to be one of President Obama’s signature policies to address climate change). At this point, such news coming out of this EPA feels par for the course.

However, what you might have missed over the past couple of weeks in the news was a more interesting and perhaps more encouraging development having to do with climate change in the courts – both in the U.S. and abroad.

You might recall that last year the cities of San Francisco and Oakland filed a major lawsuit against many of the major fossil fuel companies (e.g., BP, Shell, Chevron, ExxonMobil, etc.) under the assertion that these companies were responsible for the emergent damages of climate change. This came in the wake of alarming accusations levied against ExxonMobil that while the company had internally performed cutting-edge research on, and thus understood, climate change and anthropogenic greenhouse gas (GHG) emissions, the company had externally communicated either uncertainty or outright rejection of climate science to its stakeholders and customers.

Fast forward to March 21st, a hearing for this case took place in San Francisco, which served as a day-long clinical examination of the science of climate change by request of the judge in that case, William Alsup. The exchange is particularly significant, as legal and scientific experts on both sides of the case could now speak to the complicated landscape of climate science on legal record – which previously had only been done to a limited extent. This “tutorial,” as it has been so-called, led to a couple of key developments.

First, there was no disagreement on what the science says about climate change. Chevron’s attorney argued in favor of the Intergovernmental Panel on Climate Change’s (IPCC) key conclusion about the “extreme” likelihood of humans being the dominant cause of observed warming since the 1950s. According to the attorney, there is no debate on climate science – instead, Chevron (and specifically Chevron, as their attorney specified he was not speaking for other companies) recognizes that there is indeed a scientific consensus on the causes of global warming. Other climate denialist entities who had submitted briefs to the courts in defense of the oil industry found themselves at odds with the industry they were trying to protect. Consequently, the alignment of the IPCC and Chevron on climate science will carry weight in these proceedings and may carry added weight in other climate litigation cases.

And second, following Chevron’s presentation on the climate consensus, the company’s attorney for the case moved towards how we might attribute responsibility to certain entities for the damages of climate change – which, in short, Chevron argued could not be specifically attributed to particular corporations, groups, or individuals. According to Chevron, the nature of the very issue is global, and it is not that extracting and producing fossil fuels in and of itself is the driver of increased GHG emissions. Instead, as the attorney stated, “it’s the way people are living their lives,” citing rapid growth in global populations and economies. This is a critical point upon which litigation is bound to stall and is one of the strongest arguments that the fossil fuel industry will have to avoid liability. Otherwise stated, how can we hold an individual, company, or even a country liable for damages when we are all users and emitters?

In response to Chevron, the plaintiffs in this case (being the cities of San Francisco and Oakland) maintained that Chevron and other large fossil fuel companies are and will be responsible for billions of dollars in damages from climate change. Expert witnesses testifying for the two cities specifically emphasized the trend of how recent years have been the warmest on record, as well as the increased frequency and magnitude of severe weather events.

These key developments are highlighted for two key reasons. First, for a hearing in a case to hone in on climate science is unusual but strikingly profound. Courts around the world, but particularly in the U.S. and the U.K., have generally struggled when it has come to the integration of scientific evidence into the legal deliberation. As one might come across when reviewing tort law, for instance, meeting the requirements for attributing liability in the case of damages means navigating very particular and defined parameters. There cannot be much room for uncertainty when it comes to how one’s actions were the primary and definite cause of damages incurred by another. However, climate science, sitting in the same box as epidemiological science did when the courts tackled the connections between tobacco and lung cancer and asbestos exposure and mesothelioma, does not speak its language the same way. In these cases, conclusions are communicated in terms of “risk” and “likelihoods,” which doesn’t so easily line up with meeting the legal steps for attributing liability. However, for this judge to let climate science have its day in court slightly opens the door further for litigants to utilize climate and event attribution science while seeking redress for damages incurred by the consequences of climate change.

Second, and relatedly, the hearing hinted at what will be the biggest battle for plaintiffs. Beyond the courts opening their ears to the science, plaintiffs will have to work even harder at attributing liability to a specific party because of what sits at the heart of Chevron’s argument: there are an infinite number of users of fossil fuels through a seemingly infinite number of modes, and therefore there are an infinite number of potentially liable parties. This will make it difficult to convince courts that any party or group of parties are responsible for damages. On top of that, and akin to the language of tort law, connecting the chain between any entity’s emission to specific damages is virtually impossible – you can’t track that piece of carbon from emission to impact. As it pertains to this lawsuit, San Francisco and Oakland may find themselves having a tougher time holding these companies liable for these reasons.

Regardless, the fact that these discussions are happening in the courts is momentous. It by no means is an indicator that climate litigation is even close to being a surefire way for the victims of the impacts of climate change to seek redress, but this case is one of a larger swath of cases being pursued in the U.S. and abroad – which not only show that we might be observing some sea change, but also that there are a number of viable routes through which climate litigation might proceed. For instance, the ongoing case of Juliana v. U.S. is a particularly high-profile suit being filed by teenagers out of Oregon, in which the plaintiffs assert that the federal government’s inaction on climate change is a violation of constitutionally guaranteed protections of certain rights. And in the UK, just a day before the aforementioned hearing in San Francisco, a case levied by UK Citizens against the government reached the country’s high court. In that case, the group asserts that current UK climate legislation is not adequate to meet the goals of the Paris Climate Agreement and protect the country’s citizens, and as such the government must take more aggressive and comprehensive action. This is similar to a recent case in the Netherlands, in which multiple parties sued the Dutch government for similar reasons and were initially successful (the case is now under appeal).

While we might lament the inactivity and perhaps even the opposition of the current federal administration towards meaningful climate and environmental action, we might take the news coming out of San Francisco and in so many other places as signs that there is another way to prompt governments and larger corporations to address climate change head on. Legal experts maintain that there is still a long way to go, and a lot of hurdles to overcome, before we see a breakthrough in the courts as it pertains to climate change, but until then, we ought to keep our eyes and ears open to current and newly emerging climate cases here and abroad.