How Private Lawsuits Could Save the Climate

Can a bunch of crab fishermen save the earth?

It’s not as silly a question as you might think. On Nov. 14, in an unprecedented action by private individuals in a U.S. court, commercial fishermen in California and Oregon sued 30 oil, gas and coal companies, seeking compensation for their losses because the Dungeness crab market in the Pacific Ocean has been harmed by rising temperatures caused by burning fossil fuels.

Some legal experts say the little-noticed lawsuit filed in Superior Court in San Francisco was a legal earthquake. It shows that lawyers and private individuals are ready to use the overwhelming evidence of climate change—and Big Oil’s efforts to suppress the facts of its culpability—to their advantage in the courts, even as politicians such as U.S. President Donald Trump continue to cast doubt on the science that demonstrates it is man-made.

“It is the first time in the United States that a private plaintiff has sued the fossil fuel industry for damages,” said David Bookbinder of the Niskanen Center, a libertarian think tank based in Washington that is leading efforts to change conservative thinking on climate change. The suit joins a slew of recent lawsuits that have been filed by U.S. towns and other public entities against Big Oil and Gas.

Many activists and lawyers hope a large number of lawsuits will force the fossil fuel industry to drop its opposition to climate-saving devices such as a carbon tax—or turn what is now tepid or cosmetic support of these tougher measures into real advocacy.

In the case of ExxonMobil, one of the defendants in the fisheries cases, such limp environmentalism included an announcement earlier in October that it was spending $1 million over two years—a rounding error for the multinational giant—to back a carbon tax to help the environment. But according to one lawyer who is pursuing ExxonMobil, that’s just “greenwashing,” or a PR push.  

“Exxon is backing the one carbon tax bill in Congress that will never become law,” he said. That’s a bill that would dictate that 100 percent of the tax money be returned to taxpayers, which sounds idealistic “but will never happen,” the lawyer said.

ExxonMobil did not immediately respond to a request for comment.

The case involving the fishermen is significant because it’s the first time one industry has gone after another over the uneven commercial benefits of fossil fuels and climate change. While the big energy companies have amassed huge cost-free profits, other industries have suffered all the costs.

“For us it’s a simple tort claim, one industry harming another,” said Noah Oppenheim, executive director of the plaintiff, the Pacific Coast Federation of Fishermen’s Associations.

A grim new U.S.-government report on climate change, published Nov. 23, could supply more ammunition to the lawsuits. It warns that global warming could seriously damage the U.S. economy and especially industries such as agriculture. The report concludes that “the evidence of human-caused climate change is overwhelming and continues to strengthen, that the impacts of climate change are intensifying across the country, and that climate-related threats to Americans’ physical, social, and economic well-being are rising.”

“These lawsuits are evidence of changing societal attitudes,” said Nigel Purvis, a former senior U.S. climate negotiator who directed environmental diplomacy in the Clinton and Bush administrations. “We’ve gotten to the point in climate science where individual communities can see the harm to them, and you can go credibly into court and say climate was the reason we had bad fishing. The science wasn’t good enough 10 years ago. You had correlation. Now we have causation.”

He added: “Oil and gas is slowly but surely becoming like tobacco. People are seeing that we are addicted to it, but perceiving for the first time it’s bad for us. And the science has gotten strong enough that we can attribute impacts to climate to a small number of companies in the crosshairs.”

For the energy companies, the comparison to tobacco is not a comforting one. Under the Tobacco Master Settlement Agreement of 1998, the major tobacco manufacturers settled Medicaid lawsuits with the attorneys general of 46 states seeking compensation of tobacco-related health care costs. The companies, which were accused of suppressing decades of research about the harmful effects of smoking, agreed to pay hundreds of billions of dollars in perpetuity and radically alter the way they market tobacco.

Similarly, energy companies are accused of hiding what they’ve known for decades about the ill effects of fossil fuels on the climate. According to a 2015 Los Angeles Times report, for example, an internal ExxonMobil draft memo from August 1988 titled “The Greenhouse Effect” noted there was scientific consensus on the role that fossil fuels play in global warming, but the author wrote that the company should “emphasize the uncertainty.”

Bookbinder said the lawsuit brought last week by the Pacific Coast Federation of Fishermen’s Associations is “a big development in two ways. First, in terms of the political and media spin on these cases, the defendants and their political supporters have been saying these are brought by radical politicians with a political agenda. Guess what? The West Coast fishermen are not radical politicians.”

He notes that those in other food-producing industries such as farmers—a group of whom are also considering such a lawsuit—are among the most affected by climate change and are also among the most conservative voters in the United States.

“As temperature goes up, milk yields drop. Dairy farmers need to think about air-conditioned barns for cows. … Who’s going to pay for all this?” he said. “And here’s another one: winter recreation. Ski resorts, what are they going to do?”

The new, 1,656-page government report, an updated version of the National Climate Assessment issued in 2014, delivers a plethora of fresh detail on the damage to U.S. industries, including fishing, from ocean warming caused by climate change. The report also says that “high tide flooding is now posing daily risks to businesses, neighborhoods, infrastructure, transportation, and ecosystems in the Southeast.”

In addition, Bookbinder and other lawyers believe the courts will be forced to consider such private “nuisance” suits more seriously than they have the ones filed by local, state, or country governments, some of which have been thrown out. Until now the governments have argued in court that if they can’t sue the fossil fuel industry over damages, they would have to raise taxes, and plaintiffs fear judges may decide to seize on that option as a remedy.

“The courts have been saying ultimately you can tax your residents. You still have another means,” Bookbinder said. “The crab fishermen, they don’t have any other means” of recovering damages.

Oppenheim said fossil fuel-caused warming has created algal blooms that generated unprecedented concentrations of the neurotoxin domoic acid, causing a kind of shellfish poisoning. This has been “devastating to the industry,” he told Foreign Policy.

The fishermen decided to sue, he said, when they “realized this is the new reality we’re going to have to deal with every year with potential closures and domoic acid impact. I’m a marine biologist. I understand the connection to global warming.”

Until now,  so-called nuisance climate lawsuits haven’t much scared the energy companies. Two have been thrown out (they are on appeal). And with a conservative majority solidifying on the Supreme Court, they may have less reason to worry.

Even so, many of the plaintiffs hope to keep their cases—ten other lawsuits filed by local, county or state governments across the country are still ongoing— in more sympathetic state courts. And on Nov. 2, the Supreme Court turned down a request from the Trump administration to stay another lawsuit filed against the federal government in 2015 by 21 young people who argue that their constitutional right to a clean environment is being violated.

That case was sent back to a federal appeals court. In response, on Nov. 21, the Ninth Circuit Court of Appeals said it would decide whether the case goes to trial. That was considered a victory for the plaintiffs; the court said in effect it would review whether there is a constitutional right to a climate capable of sustaining human life, and whether the atmosphere is a “public trust” of the federal government.

In an odd twist, U.S. courts appear so taken aback by the breadth and potential of that litigation that all three levels of the judicial system—district, appellate,  and the Supreme Court—are simultaneously studying the merits of the case, which is highly unusual, Bookbinder said. The Supreme Court noted that the “suit is based on an assortment of unprecedented legal theories, such as a substantive due process right to certain climate conditions, and an equal protection right to live in the same climate as enjoyed by prior generations.”

The children and young people’s lawsuit, Juliana v. United States, contends that the government has violated “the youngest generation’s constitutional rights to life, liberty, and property” by adopting policies that promote the use of fossil fuels even though they cause global warming. It was modeled on a similar one in Holland that won a historic victory against the Dutch government. In 2015, the judge in that case ordered the Netherlands to cut its greenhouse-gas emissions to at least 25 percent below 1990 levels by 2020. He cited the possibility of climate-related damages to “current and future generations of Dutch nationals” and the government’s “duty of care … to prevent hazardous climate change.” A Dutch appeals court upheld the verdict last month.

Asked to comment on the fisheries case, a spokesman for one of the lead defendants, Chevron, told FP that “this lawsuit, like the similar suits filed by these same plaintiffs’ attorneys, is without merit and counterproductive to real solutions to climate change. The lawsuit seeks to penalize the production of reliable, affordable energy, which has been lawful and encouraged by governments.”

The National Association of Manufacturers, meanwhile, derided the California fisheries lawsuit as doomed to failure. “Out of curiosity, how do these folks power their boats, with sails or the product the defendants make?” the group’s spokesman, Michael Short, told Climatewire.