The last time that a community tried to sue a bunch of oil and gas companies for environmental destruction due to climate change, it didn’t turn out so well. In 2008, the tiny village of Kivalina launched a suit against a host of energy companies, including oil and gas giants Exxon, Shell, BP and Chevron. Kivalina’s argument was simple: climate change was destroying their village through melting ice caps and rising seas, phenomenon that were linked scientifically to the large-scale carbon emissions being produced by oil, gas and energy companies. The companies therefore (the town reasoned), should pay for the relocation of the Native American Indian village.
But in 2012 the 9th Circuit Court ruled that “the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.” If the village wanted relief, the court argued, it would need to look to the federal government for help, not to the public court system.
The issue of whether one can attribute responsibility for climate change to a single party continues to be debated. But the revelation in 2015 that Exxon Corp had figured out nearly 40 years earlier that its fossil-fuel-based industry was actually precipitating climate change has helped give weight to the idea that large emitters bear responsibility to increased global warming.
Yesterday, three communities in California decided to take up that debate again with three independent suits. Marin and San Mateo Counties in Northern California and the City of Imperial Beach in San Diego County allege that the companies had foreknowledge that fossil fuel industries precipitated climate change and are responsible for covering the costs of adaptation and mitigation.
Each of these three communities includes a substantial Pacific coastline that will be at risk of flooding in the years to come.
There have been other attempts in recent years to hold oil and gas companies accountable for the impact of fossil fuel emissions, including small communities in both Louisiana and Alaska that say they are losing their towns to rising sea levels. But what is different about yesterday’s suits is the comprehensive scope of the effort, which is being compared at this point to the early effort by health activists to hold tobacco companies responsible for smoking-related deaths. By 1998, when a master agreement was drawn up to address and stem the flood of lawsuits against embattled tobacco companies, more than 800 private lawsuits had been launched. Some 40 states also headed to court for everything from financial recovery due to mounting health costs to charges for fraudulent behavior.
Could we be looking at a similar challenge to the fossil fuel industry? It’s too early to tell, but environmental researchers do have one thing to work with that towns like Kivalina didn’t have at its fingertips in 2008: data.
According to research that came out in 2013 (and is growing), scientists and lawyers now have a better means for divvying up the responsibility. There’s a formula for that.
“Courts need no longer fear that it would be impossible to untangle the private sector’s historical contributions to climate change …” wrote American University Law Professor David Hunter in his blog post for Progressive Reform. “A clear formula now exists for allocating at least a significant percentage of the costs of climate change to those companies that benefited most from the public nuisance created by their emissions.”
Fiickr image: secretivemarshbird