Tak­ing the Cli­mate Change Bat­tle to Those Who Got Us in This Mess

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Car­bon diox­ide has a strange prop­erty. It trans­mits vis­i­ble light but it ab­sorbs the in­frared ra­di­a­tion which is emit­ted from the earth. Its pres­ence in the at­mos­phere causes a green­house ef­fect [....] It has been cal­cu­lated that a tem­per­a­ture rise cor­re­spond­ing to a 10 per cent in­crease in car­bon diox­ide will be suf­fi­cient to melt the ice­cap and sub­merge New York. — Re­knowned Physi­cist Dr. Ed­ward Teller ad­dress­ing the Amer­i­can Pe­tro­leum In­sti­tute on its 40th birth­day in 1959. Sig­nif­i­cant tem­per­a­ture changes are al­most cer­tain to oc­cur by the year 2000, and these could bring about cli­matic changes. [...] there seems to be no doubt that the po­ten­tial dam­age to our en­vi­ron­ment could be se­vere. [...] pol­lu­tants which we gen­er­ally ig­nore be­cause they have lit­tle lo­cal ef­fect, CO2 and sub­mi­cron par­ti­cles, may be the cause of se­ri­ous world-wide en­vi­ron­men­tal changes. Report en­ti­tled "Sources, Abun­dance, and Fate of Gaseous At­mo­spheric Pol­lu­tants" pre­sented to the Amer­i­can Pe­tro­leum In­stu­tute based on stud­ies it com­mis­sioned Stan­ford Re­search In­sti­tute to con­duct.

What if you man­aged a large com­pany and dis­cov­ered that your pri­mary prod­ucts would ul­ti­mately cre­ate a dev­as­tat­ing plan­e­tary apoc­a­lypse if it was sold and used as in­tended for an­other few decades. Would you re­veal what you knew or cover it up, lie about it, try to stop any­one from find­ing out and dis­credit those who did learn the truth and talked about it?

On April 17, Boul­der County, Colorado; the city of Boul­der; and San Miguel County, Colorado, filed suit against two oil com­pa­nies and their sub­sidiaries. The charge is for “caus­ing, con­tribut­ing to and ex­ac­er­bat­ing cli­mate change” and for hav­ing “al­ready harmed Plain­tiffs’ prop­erty and im­pacted the health, safety and wel­fare [of] their res­i­dents.” This is just one of many dif­fer­ent law­suits filed in the United States in the past sev­eral years that at­tempt to take on those re­spon­si­ble for lead­ing the coun­try down this path to the dev­as­tat­ing ef­fects of cli­mate change. Some, like this one, have been filed against the oil com­pa­nies them­selves for their role in spread­ing green­house gas emis­sions into the air and toxic pol­lu­tants into the wa­ter­ways and the ground. Some have been filed against the fed­eral govern­ment for aid­ing and abet­ting the fos­sil fuel en­ter­prises and for ig­nor­ing its con­sti­tu­tional re­spon­si­bil­ity to keep us safe.

The logic be­hind these suits in­volves real dam­age to our col­lec­tive health, safety, ris­ing wa­ters along the coast­lines, changes in weather pat­terns, drought and more – all com­ing as a direct re­sult of the ac­tions of the oil com­pa­nies and both ac­tion and in­ac­tion on be­half of the U.S. govern­ment. They are be­ing taken se­ri­ously in a way that ear­lier suits on a sim­i­lar sub­ject have not been. They are also col­lec­tively build­ing a mo­men­tum and pres­sure that ap­pears to be slowly chang­ing the tide of pub­lic opin­ion and forc­ing the fos­sil fuel com­pa­nies into a corner where they may fi­nally have to do some­thing.

The Chil­dren’s Cru­sade

One of the ear­li­est of these ac­tions is the case for­mally known as Ju­liana v. U.S., No. 6:15-cv-01517. It was filed in the U.S. District Court in 2015. The law­suit be­gan with 21 chil­dren su­ing the govern­ment in 2015. It as­serted that be­cause of spe­cific af­fir­ma­tive ac­tions by the U.S. govern­ment – ac­tions span­ning over a half cen­tury, in­clud­ing con­tin­u­ing to sup­port the growth of the fos­sil fuel in­dus­try – the U.S. govern­ment had with full knowl­edge passed leg­is­la­tion and taken other steps that were di­rectly re­spon­si­ble for wors­en­ing cli­mate change. Those ac­tions also ended up with the United States pro­duc­ing an es­ti­mated 25% of the world’s car­bon emis­sions. The law­suit fur­ther as­serted that be­cause of those ac­tions, the chil­dren’s con­sti­tu­tional rights “to life, lib­erty and prop­erty” were vi­o­lated and that the govern­ment failed to pro­tect es­sen­tial pub­lic trust re­sources. Note that in this case it was only the U.S. govern­ment that was on trial. Know­ing they would likely get pulled into the ar­gu­ments, sev­eral oil com­pa­nies orig­i­nally filed briefs in sup­port of the govern­ment’s side of the case. As the case de­vel­oped fur­ther and it be­came clear that help­ing out in this way was riskier than mostly rooting from the side­lines, those oil com­pa­nies with­drew their direct en­gage­ment in the case.

Af­ter the case had al­ready with­stood one at­tempt by the Obama ad­min­is­tra­tion to be dis­missed in 2016, it was pro­ceed­ing for trial at in­creas­ing speed. The Trump ad­min­is­tra­tion, led by a Pres­i­dent who had once re­ferred to cli­mate change as a hoax, filed a U.S. govern­ment pe­ti­tion for a writ of man­damus in the case. Trump’s le­gal team’s ar­gu­ment then was that the fed­eral judge in Eu­gene, Ore­gon, who had pre­vi­ously re­fused to dis­miss the case in Novem­ber 2016, had ex­ceeded her au­thor­ity as a judge. They said this in­volved pol­icy mat­ters that the Pres­i­dent and the Congress have full au­thor­ity to han­dle and for which the judge had no au­thor­ity.

This step re­sulted in the case go­ing to the U.S. District Court of Ap­peals in San Fran­cisco in an ef­fort to re­spond to yet an­other at­tempt to have the case thrown out.

The plain­tiffs in the case re­sponded to court re­quests re­gard­ing the writ of man­damus on Au­gust 28, 2016. Eight am­i­cus briefs were also filed with the court in sup­port of the youth plain­tiffs. The San Fran­cisco U.S. Court of Ap­peals, which heard that ap­peal, de­cided against the Trump ad­min­is­tra­tion. In the three-judge panel’s unan­i­mous de­ci­sion re­leased on March 7, the court said the is­sues the Trump ad­min­is­tra­tion was con­cerned about would be “bet­ter ad­dressed through the ordinary course of lit­i­ga­tion.”

Ju­lia Olsen, the lead at­tor­ney rep­re­sent­ing the chil­dren’s group in the case, said the de­ci­sion means there is a full “green light for trial.” She said in a state­ment that she would ask for a trial date in 2018 “where we will put the fed­eral govern­ment’s dan­ger­ous en­ergy sys­tem and cli­mate poli­cies on trial for in­fring­ing the con­sti­tu­tional rights of young peo­ple.”

Be­sides the trial date, there are two other ma­jor is­sues that will need to be ad­dressed in the case soon.

One in­volves whether cer­tain cur­rent and for­mer govern­ment of­fi­cials can now be ques­tioned in de­po­si­tions for the case. One of those of­fi­cials, whose tes­ti­mony the chil­dren most wanted to hear from, is Rex Tiller­son, most re­cently Trump’s for­mer U.S. Sec­re­tary of State but also formerly the chair­man and chief ex­ec­u­tive of­fi­cer of Exxonmo­bil Cor­po­ra­tion plus the head of a ma­jor pe­tro­leum in­dus­try trade group. When the first de­po­si­tion re­quest was is­sued to Tiller­son ear­lier in the case, that re­quest was de­nied be­cause he was in the mid­dle of be­ing con­firmed for his short-lived role in the Trump ad­min­is­tra­tion.

The sec­ond ques­tion is whether Trump and the U.S. Jus­tice De­part­ment may want to es­ca­late the writ of man­damus de­ci­sion to the U.S. Supreme Court.

So far, there has been no com­ment from the U.S. Jus­tice De­part­ment re­gard­ing the U.S. Court of Ap­peals’ lat­est rul­ing.

For the mo­ment, though, since there is no other ob­vi­ous cause for ap­peal­ing it with­out a de­ci­sion hav­ing been made for ei­ther party, it ap­pears this case will go to trial likely some­time in the sec­ond half of 2018. It is cur­rently sched­uled to go to trial on Oc­to­ber 29.

The out­come of this case will be sig­nif­i­cant, as it may end up rul­ing not just against the govern­ment but on what the con­sti­tu­tion truly re­quires of the fed­eral govern­ment in look­ing out for the wel­fare of its cit­i­zens.

The Oakland – San Fran­cisco Law­suit

Last year, Oakland and San Fran­cisco sued fos­sil fuel com­pa­nies di­rectly for their part in de­stroy­ing the en­vi­ron­ment via global warm­ing and the dam­age it has caused coastal com­mu­ni­ties.

The two Cal­i­for­nia cities filed their law­suit claim­ing that BP, Chevron, Cono­cophillips, Exxonmo­bil and Shell have know­ingly de­stroyed the en­vi­ron­ment. Ac­cord­ing to the lit­i­ga­tion fil­ing, they did so by con­tin­u­ing to drive higher and higher lev­els of oil and gas pro­duc­tion “de­spite know­ing – since at least the late 1970s and early 1980s if not ear­lier – that mas­sive fos­sil fuel us­age would cause global warm­ing.”

The dam­age the two cities are al­ready deal­ing with now in­clude ris­ing tem­per­a­tures, drought, ex­treme weather con­di­tions, ris­ing wa­ters along the coast­lines and as­so­ci­ated flood­ing. These cities, like many oth­ers in the United States, are al­ready pay­ing the price for fos­sil fuel emis­sions-re­lated global warm­ing – and they want those who caused it to be held accountable.

As one might ex­pect, the fos­sil fuel com­pa­nies dis­agreed strongly with the claim and took great pains to fight the lit­i­ga­tion. Based on the strength of the fil­ing in the case, how­ever, so far, this lit­i­ga­tion is mov­ing ahead at full speed.

The next step in the case, or­dered by U.S. District Court Judge Wil­liam Al­sup, was a first-ever pub­lic le­gal hear­ing where both sides in the case were al­lowed “to

con­duct a two-part tu­to­rial on the sub­ject of global warm­ing and cli­mate change.” That tu­to­rial was held in mid-march.

As the fil­ing in the case ex­plained about the tu­to­rial, “The first part will trace the his­tory of sci­en­tific study of cli­mate change, be­gin­ning with sci­en­tific in­quiry into the for­ma­tion and melt­ing of the ice ages, pe­ri­ods of his­tor­i­cal cool­ing and warm­ing, smog, ozone, nu­clear win­ter, vol­ca­noes and global warm­ing. The sec­ond part will set forth the best sci­ence now avail­able on global warm­ing, cli­mate change, glacier melt, sea rise and coastal flood­ing.”

Each side in the case was given an hour to present on each part of the tu­to­rial. At­tor­neys as well as ex­perts des­ig­nated by them were also al­lowed to tes­tify.

Though the tu­to­ri­als were not the ba­sis for any fi­nal rul­ings and in­stead mostly to qual­ify who would be al­lowed to tes­tify in the fi­nal case, this was still a crit­i­cal step in the long-term lit­i­ga­tion process against the fos­sil fuel com­pany em­pire. In re­quir­ing the par­ties in the case to present their po­si­tions, “the court is forc­ing these com­pa­nies to go on the record about their un­der­stand­ing of cli­mate sci­ence,” said Marco Si­mons, Earthrights In­ter­na­tional gen­eral coun­sel. This has been some­thing oil com­pa­nies “have des­per­ately tried to avoid do­ing.”

The tes­ti­mony was given, with the main sur­prise of the event be­ing that the fos­sil fuel pre­sen­ta­tions seemed to ac­knowl­edge – for the first time in a law­suit – that they had been aware of some of the is­sues re­gard­ing the im­pacts of green­house gas emis­sions from their prod­ucts. An­a­lysts watch­ing the ac­tion sug­gested part of the rea­son for this ad­mis­sion was to set up for some­thing later. That “some­thing later” could be shift­ing the na­ture of the fos­sil fuel com­pa­nies’ le­gal po­si­tion to one where it might claim that ev­ery­body (mean­ing the pub­lic as well) knew green­house gas emis­sions are a ma­jor cause of global warm­ing. And if “ev­ery­body knew,” it’s hard to pin the dam­ages on the fos­sil fuel com­pa­nies.

If that logic sounds odd, con­sider what the tobacco com­pa­nies so ex­pertly did when it be­came clear they had prior knowl­edge of link­ages be­tween tobacco smok­ing and heart dis­ease, lung dis­ease and nu­mer­ous forms of cancer. They piv­oted the ar­gu­ment to one where “ev­ery­body knew” (even though they didn’t) that smok­ing was harm­ful and yet smoked any­way. So those su­ing on be­half of those sick, dy­ing or dead from smok­ing could not pos­si­bly be held re­spon­si­ble. Now that the hear­ing is over, the judge will use the in­for­ma­tion to de­ter­mine which of these ex­perts can tes­tify at the reg­u­lar trial

New York City Ver­sus the “Big 5” Pub­licly Traded Oil Com­pa­nies

Not to be out­done by its West Coast coun­ter­parts, on Jan­uary 9, 2018, the govern­ment of New York City sued BP, Chevron, Cono­cophillips, Exxonmo­bil and Royal Dutch Shell.

Sim­i­lar to the pre­vi­ous case, this one as­serts that global warm­ing is caus­ing New York City to spend “bil­lions of dol­lars” to han­dle the prob­lem of sea wa­ter ris­ing on its coast­lines and in­fra­struc­ture, such as flooded sub­ways, and to pro­tect its cit­i­zens from the im­pacts of global warm­ing. Specif­i­cally, the suit says, “To deal with what the fu­ture will in­evitably bring, the City must build sea walls, lev­ees, dunes and other coastal ar­ma­ment and el­e­vate and har­den a vast ar­ray of City-owned struc­tures, prop­er­ties and parks along its coast­line.” The doc­u­ments filed in the case go on to say that “the costs of these largely un­funded projects run to many bil­lions of dol­lars and far ex­ceed the City’s re­sources.”

As for why the oil com­pa­nies should be held accountable for all this, the suit notes that the five com­pa­nies named as de­fen­dants col­lec­tively pro­duced about 11% of all green­house gas emis­sions tied to global warm­ing. New York City’s at­tor­neys also charge that these com­pa­nies and the en­tire fos­sil fuel in­dus­try have been aware of the con­se­quences of their ac­tions for a long time but tried to hide that knowl­edge from the pub­lic. As for dam­ages, the suit says, “In this lit­i­ga­tion, the City seeks to shift the costs of pro­tect­ing the City from cli­mate change im­pacts back onto the com­pa­nies that have done nearly all they could to cre­ate this ex­is­ten­tial threat.”

This par­tic­u­lar case is still young, and not much more in­for­ma­tion is pub­licly avail­able on what is hap­pen­ing on it at this time.

The In­ves­ti­ga­tions by Mas­sachusetts, New York and Texas into What Exxonmo­bil Knew and How It Hid In­for­ma­tion

Al­though it is not a law­suit yet, the Mas­sachusetts At­tor­ney Gen­eral, in par­al­lel with New York At­tor­ney Gen­eral Eric Sch­nei­der­man and the state of Texas, is cur­rently in­ves­ti­gat­ing whether Exxonmo­bil

sup­pressed cli­mate change re­search re­sults from pub­lic view.

The smok­ing gun for this in­ves­ti­ga­tion started in March 2016 af­ter the Los An­ge­les Times and In­sid­e­cli­mate News broke early in­for­ma­tion show­ing that Exxonmo­bil sci­en­tists knew about green­house gas emis­sions’ ef­fects on global warm­ing go­ing back to the 1970s. Those ar­ti­cles said that Exxonmo­bil’s re­sponse to what it learned was to hire sci­en­tists and lob­by­ists and use its vast monies to launch a ma­jor mis­in­for­ma­tion cam­paign about it rather than share it pub­licly for the greater good.

Exxonmo­bil fought back against the Civil In­ves­tiga­tive De­mand (CID) both in Texas and Mas­sachusetts. It filed in court to have the CIDS quashed. It also at­tempted a sim­i­lar ac­tion in New York.

Exxonmo­bil lost its first ma­jor bat­tle of this triad with a de­ci­sion in a New York court at the end of March 2018. Then it was or­dered it must com­ply with New York’s re­quest for in­for­ma­tion.

Then, on April 13, Exxonmo­bil lost its at­tempt to stop the Mas­sachusetts part of the in­ves­ti­ga­tion. In a rul­ing de­liv­ered on that date from the Mas­sachusetts Supreme Ju­di­cial Court, As­so­ciate Jus­tice El­speth Cypher wrote, “Exxon protests that its fran­chisees have noth­ing to do with cli­mate change and have played no part in dis­sem­i­nat­ing those state­ments, so the at­tor­ney gen­eral’s re­quests can­not ‘arise from’ Exxon’s fran­chise sys­tem. Bear­ing in mind the ba­sis for the C.I.D. and the at­tor­ney gen­eral’s in­ves­ti­ga­tion, we dis­agree.”

When this lat­est rul­ing was an­nounced, state At­tor­ney Gen­eral Maura Healey was clearly pleased by what seemed an ever-stronger set of de­ci­sions push­ing back against Exxonmo­bil. In a pre­pared state­ment on the mat­ter, she said: “For the sec­ond time this month, Exxon’s scorched earth cam­paign to block our in­ves­ti­ga­tion has been en­tirely re­jected by the courts. In its de­ci­sion to­day, our state’s high­est court af­firmed that Exxon is sub­ject to our laws and that our of­fice has the au­thor­ity to in­ves­ti­gate. Now Exxon must come for­ward with the truth, what it knew about cli­mate change, when, and what it told the world. The peo­ple of Mas­sachusetts – and peo­ple ev­ery­where – de­serve an­swers.”

The Colorado Lit­i­ga­tion

The most re­cent of these suits is the one filed by three Colorado gov­ern­men­tal or­ga­ni­za­tions: the City of Boul­der, the Board of County Com­mis­sion­ers of Boul­der County, and the Board of County Com­mis­sion­ers of San Miguel County. The de­fen­dants in the case are Sun­cor En­ergy (U.S.A.), Inc., Sun­cor En­ergy Sales, Inc., Sun­cor En­ergy, Inc. (these three to­gether are known as the “Sun­cor De­fen­dants”) and Exxon Mo­bil Cor­po­ra­tion.

Ac­cord­ing to the agen­cies who filed this case, it is unique be­cause it is the first such case filed by an in­land state. Past law­suits by gov­ern­men­tal agen­cies have em­pha­sized is­sues such as sea level rise as one of their ma­jor prob­lems. This one is dif­fer­ent, fo­cus­ing on the broader im­pli­ca­tions of cli­mate change on vir­tu­ally any place.

In the suit, the plain­tiffs rep­re­sent them­selves as “lo­cal govern­ment en­ti­ties in the state of Colorado that face sub­stan­tial and ris­ing costs to lessen the im­pacts of hu­man alteration of the cli­mate (“cli­mate change”) on their prop­erty and to pro­tect the health, safety and wel­fare of their res­i­dents.” They are su­ing Exxonmo­bil and the Sun­cor De­fen­dants “for the sub­stan­tial role they played and con­tinue to play in caus­ing, con­tribut­ing to and ex­ac­er­bat­ing cli­mate change.”

They in­tro­duce the case by not­ing that Colorado’s Gover­nor and Gen­eral Assem­bly are on record as say­ing that “cli­mate change will bring more (and more se­ri­ous) heat waves, wild­fires, droughts and floods to the State, as well as myr­iad other con­se­quences caused by rapidly ris­ing tem­per­a­tures.” They go on to say that “these im­pacts have al­ready harmed Plain­tiffs’ prop­erty and im­pacted the health, safety and wel­fare of their res­i­dents. The dam­ages will only mul­ti­ply as cli­mate change wors­ens.”

The dam­ages are cre­at­ing an enor­mous bill for the plain­tiffs, who are do­ing ev­ery­thing they can to mit­i­gate these prob­lems. So far, they have had to ab­sorb the costs them­selves, some­thing that in turn must be passed on to tax­pay­ers.

That, they as­sert, is wrong. The plain­tiffs as­sert that they and their tax­pay­ers not only can­not pay all these costs but also that it should not be their full re­spon­si­bil­ity. In­stead, they say, “the costs should be shared by the Sun­cor and Exxon de­fen­dants be­cause they know­ingly and sub­stan­tially con­trib­uted to the cli­mate cri­sis by pro­duc­ing, pro­mot­ing and sell­ing a sub­stan­tial por­tion of the fos­sil fu­els that are caus­ing and ex­ac­er­bat­ing cli­mate change, while con­ceal­ing and mis­rep­re­sent­ing the dan­gers as­so­ci­ated with their in­tended use.”

As in the other cases, it is not just the heinous na­ture of the act of caus­ing cli­mate change that is be­ing al­leged. It is also that the fos­sil fuel com­pa­nies knew full well the dam­age they were caus­ing and that they de­lib­er­ately lied to the pub­lic about the dan­gers of green­house gas emis­sions.

As ev­i­dence of that knowl­edge, the Colorado agen­cies note the Stan­ford Re­search In­sti­tute report pre­sented to the Amer­i­can Pe­tro­leum In­sti­tute in 1968. The report notes that car­bon diox­ide emis­sions pro­duced by the burn­ing of fos­sil fu­els for en­ergy would cre­ate planet-wide warm­ing and melt the ice caps and “may be the cause of se­ri­ous world-wide en­vi­ron­men­tal chal­lenges.” The com­pa­nies in­volved here and the in­dus­tries they served were there­fore aware of the dam­age they would be in­flict­ing on the world over 50 years ago.

The law­suit also ref­er­ences the 2017 Na­tional Cli­mate As­sess­ment, a U.S. fed­eral govern­ment report. In that report, the govern­ment agen­cies in­volved noted that “this pe­riod is now the warm­est in the his­tory of mod­ern civ­i­liza­tion.” That report notes ex­plicit cli­mate ef­fects such as the pres­ence of more fre­quent and se­vere heat­waves, ear­lier spring melt and re­duced snow­pack, which af­fects wa­ter re­sources es­pe­cially in the western United States (in­clud­ing Colorado), drought and in­creased in­ci­dences of ex­treme weather events. All of this has ma­jor im­pli­ca­tions for Colorado – and the United States as a whole. (See the Tril­lions anal­y­sis of the third in­terim draft of this report, “The Cli­mate-change Report Trump Did Not Want You To See,” pub­lished Septem­ber 3, 2017, on Tril­lions.biz.)

As for the role of the de­fen­dants in con­tribut­ing to global warm­ing, the suit ref­er­ences the Sun­cor De­fen­dants be­ing “re­spon­si­ble for the emis­sion of ap­prox­i­mately 2 bil­lion tons of CO2 into the at­mos­phere.” The suit fur­ther ex­plains that “based on the fos­sil fu­els it has brought to mar­ket, Sun­cor is one of the largest sources of his­toric and present-day GHG emis­sions.” It also notes that a ma­jor part of Sun­cor’s crude oil comes from tar sands. That means that “Sun­cor’s fos­sil fuel prod­ucts pro­duce a pro­por­tion­ally greater amount of GHG emis­sions than most fos­sil fuel com­pa­nies do.”

Exxonmo­bil was also hit hard on its con­tri­bu­tions to green­house gas emis­sions. As noted in the fil­ing, “his­tor­i­cally, Exxon sup­plied nearly 10 per­cent of global oil de­mand.” That in­cluded the pro­duc­tion of “bil­lions of bar­rels of oil, tril­lions of cu­bic feet of nat­u­ral gas and mil­lions of tons of coal” since the 1960s. As for what that con­verts to in terms of green­house gas emis­sions, the suit states that “based on the GHG emis­sions that can be traced solely to fos­sil fu­els pro­duced by Exxon be­tween 1988 and 2015, it is re­spon­si­ble for nearly 16 bil­lion tons of car­bon diox­ide.”

The suit closes by stat­ing the fol­low­ing con­clu­sions, all backed up by de­tailed facts in the fil­ing:

1. “The cli­mate has been al­tered be­cause of fos­sil fuel use.”

2. “The im­pacts of a cli­mate al­tered by De­fen­dants’ con­duct are be­ing felt in Plain­tiffs’ com­mu­ni­ties.” (Ex­am­ples cited in­clude ris­ing tem­per­a­tures and ex­treme heat, shifts in pre­cip­i­ta­tion pat­terns and wa­ter avail­abil­ity, in­creased risks of drought, in­creased risks of wild­fires, in­creased risks to for­est health and in­creased threats to pub­lic health. For each sit­u­a­tion, the fil­ing goes on to de­tail spe­cific prob­lems each plain­tiff has had to deal with be­cause of cli­mate change as well as many of the costs in­volved in han­dling them.

3. “De­fen­dants knew fos­sil fuel use would re­sult in dan­ger­ous changes in the cli­mate.”

4. “De­fen­dants sub­stan­tially con­trib­uted to, ac­cel­er­ated and ex­ac­er­bated cli­mate change by pro­mot­ing and sell­ing huge amounts of fos­sil fu­els.”

5. “De­fen­dants con­cealed and mis­rep­re­sented to the pub­lic what they knew about cli­mate change and the dan­gers of con­tin­ued and in­creased fos­sil fuel use.”

In re­turn for a find­ing in their fa­vor, the plain­tiffs are de­mand­ing “mon­e­tary re­lief to com­pen­sate Plain­tiffs for their past and fu­ture dam­ages and costs to mit­i­gate the im­pact of cli­mate change, such as the costs to an­a­lyze, eval­u­ate, mit­i­gate, abate and/or re­me­di­ate the im­pacts of cli­mate change.”

At this point, the case has only been filed, with no re­sponses re­ceived from any par­ties as of yet. The his­tory of the other lit­i­ga­tions sug­gests this one will be taken se­ri­ously and that ques­tions such as a lack of stand­ing or il­le­git­i­macy of the is­sues be­ing raised will be re­jected. Im­pli­ca­tions and What to Ex­pect Next

One com­mon thread in these re­cent cases is the as­ser­tion that the fos­sil fuel com­pa­nies have known about the dan­gers of green­house gas emis­sions on long-term cli­mate change – as well as how fast cli­mate change was likely to hap­pen – for a long time.

There is now much leak­ing of in­for­ma­tion about this from the fos­sil fuel com­pa­nies them­selves. One of the most of­ten cited of these is the ar­ti­cle en­ti­tled “Sources, Abun­dance, and Fate of Gaseous At­mo­spheric Pol­lu­tants,” writ­ten by Elmer Robin­son and R.C. Rob­bins and pub­lished for the Amer­i­can Pe­tro­leum In­sti­tute in 1968. In it, the writ­ers noted then that “man is now en­gaged in a vast geo­phys­i­cal ex­per­i­ment with his en­vi­ron­ment, the earth,” by push­ing car­bon diox­ide into the at­mos­phere in such quan­ti­ties through the burn­ing of fos­sil fu­els. They warned in their pa­per then that when “the earth’s tem­per­a­ture in­creases sig­nif­i­cantly,” many dra­matic cli­mate change events will be­gin to take place, such as “the melt­ing of the Antarc­tic ice cap, a rise in ocean lev­els, warm­ing of the oceans and a de­crease in pho­to­syn­the­sis.”

The oil com­pa­nies re­al­ized how bad things were and even pre­dicted the cur­rent global warm­ing rate in pa­pers pub­lished over 30 years ago. They also went out of their way to hide that in­for­ma­tion from the pub­lic, even while they were reap­ing huge prof­its while the earth and ev­ery­one on it was be­ing po­si­tioned for the hor­ri­ble fu­ture im­pacts of cli­mate change. More about what the oil com­pa­nies knew and how they went about hid­ing that truth is out­lined in “Big Oil – Big Lies,” pub­lished in Tril­lions on June 6, 2016.

The law­suits are now mak­ing use of the leaks as a ma­jor part of how they are demon­strat­ing the li­a­bil­ity of the fos­sil fuel com­pa­nies in­volved.

An­other trend is that the law­suits are in­creas­ing both in num­ber and in the se­ri­ous­ness they rep­re­sent to the fos­sil fuel in­dus­try as a whole. Where formerly the cases filed about green­house gases and global warm­ing were typ­i­cally from small com­mu­ni­ties and on the com­mon law “pub­lic nui­sance” ar­gu­ment, these are in­stead ma­jor fil­ings tak­ing both the govern­ment and the fos­sil fuel com­pa­nies to task for ac­tual con­spir­acy to hide the truth of what they were do­ing and pro­ceed­ing any­way. They are also from deep­er­pock­eted or­ga­ni­za­tions who will not be in­tim­i­dated by ex­pen­sive lawyers and com­plex le­gal ma­neu­vers from the other side. As for the im­pli­ca­tions of all this, Kassie Siegel, di­rec­tor of the Cli­mate Law In­sti­tute, a le­gal cam­paign fo­cus­ing on pro­tect­ing the en­vi­ron­ment from cli­mate change, said in a re­cent interview: “A few pebbles are turn­ing into a land­slide. It shows the tide is turn­ing against fos­sil fuel pro­duc­ers.”

That may be, but how that tide will pro­ceed as the cases move for­ward is far from guar­an­teed to set­tle against the fos­sil fuel com­pa­nies. This is es­pe­cially an is­sue be­cause of the com­plex le­gal and sci­en­tific con­cerns in­volved. One can ex­pect both the fed­eral govern­ment and the fos­sil fuel com­pa­nies to fight back strongly against the charges, both in ac­tual court and via me­dia cam­paigns de­signed to al­ter pub­lic opin­ion on the mat­ter. It will take con­cen­trated ef­fort from all plain­tiffs and the cit­i­zens of the United States to stay fo­cused and avoid be­ing sucked into an­other mis­in­for­ma­tion cam­paign from the fos­sil fuel com­pa­nies.

Our Re­spon­si­bil­ity

In a cap­i­tal­ist so­ci­ety, a pub­licly traded com­pany must pur­sue short-term profit re­gard­less of longterm con­se­quences to the pub­lic or en­vi­ron­ment. If it doesn’t, its man­age­ment can be sued by stock­hold­ers for not ful­fill­ing the com­pany’s pri­mary pur­pose of en­rich­ing share­hold­ers.

If the man­agers of the oil in­dus­try had done their moral duty af­ter they knew the con­se­quences of their

prod­uct and passed on the in­for­ma­tion to the pub­lic, they would have been quickly fired and likely the pub­lic would not have paid much at­ten­tion – just as few of us paid any at­ten­tion when we were told about global warm­ing and cli­mate change in the 1980s and most of us are still not re­ally do­ing any­thing about it.

Many Amer­i­cans care so lit­tle about their en­vi­ron­ment that they ea­gerly pay much more for gas guz­zling pick­ups and SUVS to the point where Ford Mo­tor Com­pany an­nounced that it would stop even mak­ing sedans be­cause so few peo­ple bought them.

Honda stopped sell­ing its 70 mpg gal­lon In­sight hy­brid in 2006 be­cause so few peo­ple would buy them.

Amer­i­cans bear the greater re­spon­si­bil­ity not just be­cause we are the worst en­ergy wasters on the planet but also be­cause we sup­port a so­ci­ety in which we know that cor­po­ra­tions are ly­ing to us and harm­ing us and yet we con­tinue to in­vest in their stock and buy their prod­ucts.

Oil com­pa­nies didn’t rad­i­cally al­ter our planet’s at­mos­phere. We did. If no one pur­chased the prod­ucts that come from oil, it would still be safely in the ground where it be­longs.

Know­ing what it knew, the oil in­dus­try could have in­vested in cleaner forms of en­ergy, but these weren’t prof­itable in the short term and share­hold­ers would not have sup­ported them.

If we are go­ing to blame the oil com­pa­nies, then we should also blame the auto man­u­fac­tur­ers who col­luded with the oil in­dus­try to build the least ef­fi­cient ve­hi­cles while sup­press­ing new tech­nol­ogy. They also gave us the gas guz­zlers that most Amer­i­cans wanted to buy.

And we can blame the politi­cians we voted for who al­lowed pub­lic tran­sit to be dis­man­tled to force peo­ple to buy cars and burn gas.

While we can blame cap­i­tal­ism as a cause, if the United States was more so­cial­ist and en­ergy had been na­tion­al­ized, as it has in some coun­tries, the driv­ing force would not have been cor­po­rate prof­its but cheaper en­ergy and the cheap­est form of en­ergy would have dom­i­nated. Oil was the cheap­est form of en­ergy for a long time, so we would have likely con­tin­ued to burn oil un­til it be­came too ex­pen­sive, even if we knew that it would cause a fu­ture dis­as­ter.

Su­ing our­selves for caus­ing global warm­ing and cli­mate change is some­what point­less – just as su­ing oil com­pa­nies won’t undo the dam­age we have caused. How­ever, oil com­pa­nies didn’t just con­ceal what they knew; they de­lib­er­ately lied to us. That is def­i­nitely wrong, and they do need to be brought to jus­tice for that.

An­other good rea­son to hold oil com­pa­nies accountable is be­cause any penal­ties will be passed on to consumers in the form of higher fuel prices and that could en­cour­age more peo­ple to get off oil and into an electric ve­hi­cle.

Our present cir­cum­stances should com­pel us to not only seek jus­tice and ac­count­abil­ity but to evolve and de­velop a bet­ter cul­ture that does not sac­ri­fice the fu­ture for short-term prof­its and in which new tech­nol­ogy is an­a­lyzed thor­oughly for its po­ten­tial fu­ture harm be­fore be­ing un­leashed and in­te­grated into our so­ci­ety.

The AMERO can help us de­velop a new, more sus­tain­able eco­nomic model that is less re­liant on preda­tory cap­i­tal­ism and profit over peo­ple.

Tril­lions will con­tinue to fol­low these cases in de­tail as new de­vel­op­ments emerge. With the first of these cases likely go­ing to pub­lic trial for the first time this year, one can ex­pect much in the way of fire­works from all sides of the ar­gu­ments.

Photo by Dave_7, CC

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