Another lawsuit against ‘Big Oil’ for the effects of climate change has been filed in California. The cities of San Francisco and Oakland, on behalf of the people of California are suing BP, Chevron, ExxonMobil, ConocoPhillips and Royal Dutch Shell over the company’s contribution to current and projected impacts from sea level rise in California.
The case is similar to those filed in July by the counties of San Mateo, Marin and the City of Imperial Bay, also on the basis of the common law of public nuisance.
The new claims are also seeking a contribution from the companies for the costs of adapting public infrastructure to rising seas, however the pleadings state clearly that they do not seek to impose liability on the defendants for their greenhouse emissions nor to restrain their business operations.
The complaints claim that the companies operate an integrated business throughout the chain of fossil fuel production, including its extraction, refinement, transport, distribution and marketing to Californian and worldwide consumers.
They then set out in detail the history of each company’s engagement in climate change science and policy since the 1950s, including through the trade association the American Petroleum Institute (API).
The complaints allege that the companies have engaged in a well-funded campaign to minimise the risks and harms from global warming, in order to continue to sell their products on a massive scale.
They specifically refer to the activities of a group funded by Exxon, Chevron and the API in the 1990s called the Global Climate Science Communications Team which stated in a 1998 memo that “Victory Will be Achieved When” “Average citizens ‘understand’ (recognize) uncertainties in climate science.”
Plaintiffs allege that the companies knew that the continued unabated use of their fossil fuel products would lead to irreversible global warming and consequent harm to society at large, but continue, even today, to pursue business practices and make investments that will lead to emissions greater than what is required to hold warming to well below 2 degrees.
They claim that the ‘Big Oil’ defendants have contributed to the current concentrations of greenhouse gasses in the atmosphere, by directly causing emissions, but also by indirectly through their lobbying and marketing activities.
The pleadings allege that the companies’ activities to promote the continued consumption of their products constitutes a public nuisance, as well as the physical greenhouse gas emissions arising from the defendant’s products.
This is an interesting argument that invites the court to view the defendants’ course of conduct holistically and to acknowledge the influence of these companies and their trade association on the continued failure by governments to regulate carbon dioxide.
San Francisco and Oakland allege that the defendants’ conduct amounts to an unreasonable obstruction of public and private property, and seek an order of abatement that would require the companies to fund a climate change adaptation program including sea walls.
Trend of climate litigation
This case is part of an ongoing trend toward more climate change litigation, and a growing global recognition that the business and political activities of the world’s largest corporations are contributing to loss and damage arising from climate change.
Regardless of the outcome, this case highlights the mounting costs of climate change and raises legitimate questions about whether private interests that have profited from emissions should bear some of the cost. After all, the polluter pays principle is fundamental to both environmental and tort law.