Climate change showdown in court for big oil
A San Francisco judge who must decide whether to hold the world’s largest oil companies responsible for global warming is ordering up what many are calling the most comprehensive, and unusual, debate on climate change that the courts have seen.
Fossil-fuel corporations including Chevron, ExxonMobil and Shell are scheduled to present their views on climate science in federal court Wednesday alongside attorneys for San Francisco and Oakland. The two cities are among several communities suing the oil giants for their alleged role in sea level rise.
U.S. District Judge William Alsup has given both sides eight questions to answer at a fivehour “tutorial.” The inquiries cover the basics
of climate change and the latest scientific findings on what’s driving the phenomenon.
One question the judge wants both sides to answer: “What caused the various ice ages?” Also: “Apart from carbon dioxide, what happens to the collective heat from tail pipe exhausts, engine radiators, and all other heat from combustion of fossil fuels?”
Besides gathering basic facts to bolster a ruling, many legal and scientific experts say Alsup appears to be searching for areas where the oil industry and climate scientists are in agreement.
“We haven’t yet had a situation where the fossil-fuel companies have been hauled into court and put on the record in the way this is happening,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University. “This could be historically significant.”
Attorneys for the oil companies and plaintiff cities declined to discuss how they intend to proceed at Wednesday’s hearing. But both say they have science on their side.
The lawsuits that San Francisco and Oakland filed last year seek to recoup billions of dollars from Chevron, ExxonMobil, Shell, ConocoPhillips and BP for past and future damage caused by rising seas. They argue that the extraction and production of fossil fuels has heated the planet and begun lifting ocean levels above roads, homes and utilities’ infrastructure.
The suits also claim that the oil and gas industries knew of the harm they were causing but sought to cover it up, much the way tobacco firms undermined research into lung cancer in past decades.
Six other California cities and counties have filed similar lawsuits, as has New York City.
The oil companies deny culpability. They don’t deny that human-caused climate change is under way, but say they shouldn’t be singled out for its consequences. Some in the industry have dismissed the legal action as a publicity stunt.
“The suits are factually and legally meritless,” Sean Comey, a spokesman for Chevron, said in an email. “Reducing greenhouse gas emissions is a global issue that requires global engagement. Should this litigation proceed, it will only serve special interests at the expense of broader policy, regulatory and economic priorities.”
At Wednesday’s court hearing, representatives of the oil companies are likely to acknowledge the established science of climate change, legal scholars say, but they’re going to downplay studies that incriminate their trade and specific businesses.
“The industry has made what’s been a pretty big shift for them over the last decade or so,” said Ted Lamm, research fellow at UC Berkeley’s Center for Law, Energy and the Environment. “They’re not going to say that the human burning of fossil fuels has no impact. … At the time, they’re going to try to make as murky a case as possible of direct causation.”
Representatives for the cities, meanwhile, will play up science that pinpoints the drivers of climate change.
“That’s the gap that Judge Alsup is trying to bridge,” Lamm said. “People are watching this and are very curious to see what both sides try to do.”
Alsup has ordered informational hearings in complex, high-profile cases before.
Last year, he asked representatives of Google’s Waymo self-driving car company and rival Uber for a tutorial on Lidar, the laser sensors used in the fledgling field. Years earlier, he practiced coding skills in the programming language Java in considering a legal dispute between Oracle and Google over patents.
“We’ll see whether big oil acknowledges the scientific consensus.” Dennis Herrera, San Francisco city attorney
Never before, though, has the science in Alsup’s courtroom been so politically charged as it is with climate change.
He ordered up the tutorial when he ruled last month that the case would be heard in federal court. The cities had wanted the suit in state court, where arguments similar to theirs have had success. For example, a California judge recently forced paint companies to pay for damage caused by harmful lead-based products.
The federal courts have not been as friendly to such “public nuisance” complaints. In similar cases, judges have ruled that legislation and regulatory agencies should govern climate issues, not the bench. In Alaska, for instance, when the village of Kivalina sued oil companies over damage from rising seas, the courts said it was a matter for the Environmental Protection Agency.
Still, when he ruled last month, Alsup suggested he would hear out the cities on why their cases constitute a public nuisance.
Attorneys for San Francisco and Oakland said they looked forward to Wednesday’s hearing.
“It’s time for climate science to have its day in court,” San Francisco City Attorney Dennis Herrera said in an email. “We’ll see whether big oil acknowledges the scientific consensus and its role in causing climate change or doubles down, once again, on deception.”
Burger, at the Sabin Center for Climate Change Law, said that what the oil companies say Wednesday could shape debate not only in the courtroom but also in broader policy-making.
“We continue to have people at the highest levels of government who buy into the alternative theories of climate change,” he said. “To a large extent, these theories were put into motion by organizations funded in part by these companies. To have them switch sides would be significant in helping the public better understand where we are in terms of climate science.”