Oil and Gas Update
California Plaintiffs Seek to Address Climate Change Via State Tort Suits
August 2, 2017
On July 17, 2017, the governments of California’s Marin and San Meteo counties, as well as the city of Imperial Beach, filed three separate complaints in California Superior Court in their respective counties against 37 oil, gas, and coal companies. We have previously written about similar suits filed by citizen groups, states, and cities in federal court here.
Although most of these suits were dismissed by lower courts, Connecticut vs. AEP eventually reached the United States Supreme Court. In an 8-0 decision, the Supreme Court held that corporations cannot be sued under federal common law for greenhouse gas emissions (GHGs) because the federal common law was displaced by the Clean Air Act (CAA), which delegates management of carbon dioxide and other GHGs to the Environmental Protection Agency. See American Electric Power Company v. Connecticut, 564 U.S. 410 (2011). The Supreme Court, however, did not address whether the CAA displaced state common law claims, which left the door open for the suits filed last week in California.
Standing is typically the stumbling block for plaintiffs who wish to use the courts to regulate GHGs. The plaintiffs in the California suits will need to satisfy the California Superior Court that a ruling in their favor will redress their claimed injuries. Plaintiffs’ alleged injuries generally relate to evidence of rising sea levels, which they allege was proximately caused by the defendants’ extraction, promotion, and sale of fossil fuel products. According to plaintiffs’ math, the 37 defendants were responsible for 20% of global fuel product-related CO2 between 1965—the year in which the defendants were allegedly put on notice of the potential impacts of climate change—and 2015. The plaintiffs contend that their 20% figure represents a “substantial portion of all such emissions in history.”
For public nuisance standing, a plaintiff must show special injury that is concrete and redressable by the court. Because climate change has broad and highly uncertain effects, any relief ordered with respect to any set of defendants will have uncertain effects and hence not meet the redressability threshold. Thus, a private plaintiff cannot generally not establish standing in suits such as these. States and municipalities, on the other hand, may be able to establish standing, as demonstrated by Massachusetts’s success in challenging EPA’s failure to regulate greenhouse gas emissions. The Massachusetts situation was somewhat different, however, as it was seeking a remedy that would require nationwide regulation of GHGs, as opposed to the state court injunction sought in these suits.
The California plaintiffs may also have to contend with the argument that the science isn’t settled regarding how much of a reduction in global CO2 emissions would be sufficient to halt or even slow climate change and rising sea levels. Even if the California Superior Court could wipe out all of the emissions associated with the defendants’ products, would the resulting 20% alleged reduction be sufficient to halt climate change? Indeed, some believe reversing climate change is impossible, which casts doubt on the redressability of the plaintiffs’ sea level-related injuries. It is simply hard to imagine that a state court’s jurisdictional reach extends as far as EPA’s and is sufficient to significantly curb nationwide CO2 emissions, much less impact global emissions.
Substantively, the complaints include eight causes of action: (1) public nuisance on behalf of the citizens of California; (2) public nuisance on behalf of plaintiff; (3) strict liability—failure to warn; (4) strict liability—design defect; (5) private nuisance; (6) negligence; (7) negligence—failure to warn; and (8) trespass. The public nuisance claims are generally the same types of claims previously brought in federal court, which will likely face the redressability issues discussed above. The failure to warn claims, though, are somewhat interesting.
Plaintiffs claim that the defendants knew that their products caused climate change, yet failed to warn consumers and regulators of the known and foreseeable risks that inevitably followed the intended use of their products. This, according to the plaintiffs, entitles them to punitive damages and disgorgement of profits. Thus, while a state court might conclude it lacks the power to address the public nuisance aspects of climate change, it could side with the plaintiffs on the failure to warn/strict liability claims if it agrees that the defendants knowingly deceived the public about climate change. The plaintiffs’ claim that the science was settled way back in 1965 regarding the known impacts of climate change/global warming seems a bit spurious. After all, there was some thought as recently as the 1970’s that the earth was headed for a cooling period. Still, if the California Superior Court decides the failure to warn claims are actionable, disgorging profits for even a few years could add up, given the size and number of defendants. The full complaints can be viewed here, here, and here.
This article was authored by Christopher M. Hunter, Jackson Kelly PLLC.