Cities are suing oil companies for climate change harms. Could they win?

Join UCLA Law Emmett Institute and Union of Concerned Scientists for January 25 evening talk on new climate lawsuits

Who should pay for the significant costs that cities and other local governments incur in responding to climate change? Los Angeles is the most recent city to explore the idea of suing fossil fuel companies for these harms, following in the footsteps of San Francisco, San Mateo County and a growing cohort of other jurisdictions that have already filed suit. This past year, eight such lawsuits were filed, and counting. Most have been brought by local governments in California, with one Big-Apple-sized exception: New York City announced its own suit last week.

This wave of suits relies on state law to argue that fossil fuel companies should be held liable for climate change harms, especially harm to coastal infrastructure from sea level rise. The lawsuits vary in the claims they raise, but all argue that by selling products that they knew to be harmful—and, plaintiffs assert, by actively deceiving the public about those harms—fossil fuel companies created a “public nuisance” and should be on the hook to help local communities deal with the consequences. Those consequences could easily run into the billions of dollars.

How viable are these cities’ climate suits? The Emmett Institute at UCLA School of Law and the Union of Concerned Scientists (UCS) invite you to join us at an event (also webcast) on January 25 at 6 p.m. PST at UCLA, to explore the science and the law behind these lawsuits. Bill McKibben will give opening remarks via Skype, and speakers include Serge Dedina, Mayor of Imperial Beach (one of the first plaintiff cities); Alex Hall, UCLA climate scientist; Gladys Limon, executive director of the California Environmental Justice Alliance; Peter Frumhoff, director of science and policy at UCS; and my law faculty colleague Ann Carlson. Please RSVP for the event or webcast.

It’s a fascinating time to host a conversation. These suits have earned lots of media attention, with The Washington Post, for example, calling them “the next big strategy” in climate litigation.  Some have worried that it’s too simplistic to sue ExxonMobil and other oil companies for climate change harms when those companies delivered an essential product—energy—to willing customers around the world. ExxonMobil itself has called these claims “abusive” and the result of a “conspiracy,” and has begun the process to countersue.

While novel, cities’ legal claims aren’t frivolous. Courts will take the cases seriously, and the public should, too. Similar litigation against tobacco companies and the lead paint industry serves as useful models. Emmett Institute’s Sean Hecht explained in a Twitter thread, for example, how a recent California appellate decision upholding liability for public nuisance claims against lead paint manufacturers helps cities’ climate nuisance cases.

As the cases proceed, here are some key questions:

  • Will the plaintiffs succeed in getting these cases heard in state courts, as opposed to in (potentially less friendly) federal fora?
  • Will plaintiffs successfully fight off the inevitable early-stage motions to dismiss?
  • Can plaintiffs tie defendants and their emissions tightly enough to the particular harms that plaintiffs are suffering, to warrant liability?
  • If the answer to that last question is Yes at least as to some types of harms, such as sea level rise, what are the limits of liability for other types of harms made more likely by climate change (fires, droughts)?

Join us or tune in on January 25 to learn more, including what to look for in 2018.

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