Climate Lawsuits Now a Matter of Life and Death

The Drain is a weekly roundup of environmental and climate news from Legal Planet.

What a week for watchers of climate litigation. Big new filings, claims of death and destruction, a landmark ruling, and a juicy hearing all in the span of 36 hours. 

First, there was what the New York Times described as “the first wrongful death lawsuit” to be brought against oil and gas companies over claims that they deceived the public about climate change and caused dangerous global warming — in this case related to the 2021 heat dome in the Pacific Northwest. Misti Leon is suing ExxonMobil, BP, Chevron, Shell, and other companies for fueling the extreme heat that killed her mom, Juliana, as she was driving from home to a doctor’s appointment. 

The ever-cautious Associated Press described it as “one of the first” such cases, but the Center for Climate Integrity agreed with the NYT about it being the first. And yet, it’s not so new or different in that this wrongful death complaint ends up citing familiar instances of disinformation and deception — allegations that are central to the lawsuits by dozens of cities and states. 

But that’s not all. Then there’s the 22 young people who charge that the Trump administration is violating the Constitution and putting their health at risk by worsening climate change, as E&E reports. That lawsuit, filed Thursday in the U.S. District Court for the District of Montana, alleges that Trump’s energy-related executive orders that declare a “national energy emergency” and direct agencies to “unleash American energy” violate the youths’ Fifth Amendment right to life and liberty. 

Those plaintiffs are primarily youth from Montana, along with others from Hawai‘i, Oregon, California, and Florida represented by Our Children’s Trust. That firm had its biggest success to date in Montana state courts, you may recall. 

Looking abroad, a Peruvian farmer’s lawsuit against the utility RWE for its contribution to the risk of glacial flooding was rejected by a German court, Reuters reports. The judge in that case dismissed the farmer’s suit but found that other cases with larger percentages of damage could be taken further. “What the court said today means that other people can bring other cases, other people who are affected by climate change, and can draw on that principle,” a researcher at London School of Economics told Reuters. Dozens of similar cases are globally working their way through the courts so there’s more to come. 

Last but not least, the local South Carolina media as well as the New York Times’ Karen Zraick covered another “first-of-its-kind” hearing last week in Charleston, in which lawyers argued whether that city’s lawsuit against the oil majors threatens national and energy security, as a recent Trump executive order claims. It didn’t get a lot of play elsewhere, but I find it the most interesting of the stories because of a key question it raises.

Do these climate lawsuits seeking to make polluters pay for the costs of climate destruction also seek to regulate energy? 

“American energy dominance is threatened when State and local governments seek to regulate energy beyond their constitutional or statutory authorities,” says the relevant Trump executive order from April 8, which takes aim at state and local climate policies. It mentions New York’s and Vermont’s climate superfund laws by name; as well as California’s cap-and-trade policy. It doesn’t explicitly mention municipal lawsuits except a brief, vague mention of “causes of action.” 

Theodore J. Boutrous Jr. of Gibson Dunn, who represents Chevron, argued on behalf of all the defendants while Sher Edling argued on behalf of Charleston. The New York Times focuses on a particular exchange from the hearing:

Judge Young and Mr. Sher sparred briefly over whether the executive order would apply to Charleston’s case, leading the judge to read part of the executive order out loud in court.

“I think it’s a stretch to read that as reaching this case,” Mr. Sher said.

“I don’t see why it’s such a stretch,” the judge replied.

You can read the parties’ joint responses here. 

The city of Charleston (like most, if not all, municipal plaintiffs) is seeking money, not a specific change in energy policy at the state or even federal level. Technically speaking, the city is seeking compensatory damages, punitive damages, and other damages, equitable relief, reasonable attorneys’ fees, disgorgement of profits and “other relief as the court may deem proper.” The lead defendant is not an oil company outside the state, either — Brabham Oil Company is incorporated in South Carolina, where it has headquarters.

Charleston’s complaint details (see pg. 113) the various injuries that the city has suffered, and will continue to suffer, as a result of sea level rise, extreme weather, rising temperatures and other impacts of climate change. In the hearing this led the judge to say, incredibly, “it’s the weather we’re talking about.” Putting the difference between weather and climate aside for a minute, nowhere does the complaint say anything about regulating the production, manufacturing, or distribution of fossil fuels. 

Would “abatement of the nuisances” included in the complaint necessarily require some kind of policy change or energy regulation? Not likely. At most, it could reach the advertising and marketing that plaintiffs allege is misleading. The complaint itself doesn’t even address the issue of disclosures on Big Oil’s deceptive marketing — just that the deception has injured the plaintiffs. Perhaps that’s why the judge pressed one of the plaintiffs’ lawyers to “describe whether gasoline ads should include a message about climate change, like the warnings about side effects in drug commercials,” as Zraick notes. It doesn’t appear the plaintiffs’ lawyers bit. 

Zraick’s kicker quote from Matt Edling says it all: “This lawsuit is not seeking to solve climate change, but quite candidly, it’s so the city has the money to survive it.” This is as solid and concise an argument as one could hope for when dealing with something as messy as the climate crisis. We’ll see whether this South Carolina judge agrees. 

But if the city’s lawsuit lives to see another day, the next question is: can Judge Young (and others like him) get up to speed with current climate science, including the rapidly improving abilities of attribution science? At the very least, he will need to understand the difference between daily weather and climate change. Recommended reading, Judge: The Climate Judiciary Project. 

Taken together, climate litigation is now a matter of life and death. The struggle for cities to survive and for family members to find accountability for the wrongful death of loved ones.

Thanks for reading The Drain, a weekly roundup of environmental news. Here’s what else is going on… 

Good news

Defending science: More than 200 US-based scientists joined forces and participated in a powerful 100-hour-long Weather and Climate Livestream protesting cuts to funding for atmospheric science and calling out potential risks to weather forecasts. It featured a who’s who of climate science and research including Bernadette Woods Placky, Anand Gnanadesikan, Zeke Hausfather, and John Morales.

Better batteries: A specific type of EV battery based on iron and phosphorus that poses less of a threat to tropical forests is rapidly replacing batteries reliant on cobalt and nickel, according to a report on energy transition minerals from the International Energy Agency. The bad news caveat is that their supply chain is even more dominated by China, reports Joe Lo for Climate Home News. 

Climate Comedy: Climate Science Breakthrough and Nick Oldridge have brought their series of cheeky comedy explainer videos “Climate Science Translated” to the US after finding some success with UK audiences (10+ million views). The pilot dropped yesterday. “The shit is hitting the fan, and the fan is on maximum,” is how comedian David Cross translates geoscientist Michael Oppenheimer of Princeton’s explanation of recent global temperatures.

Bad news

Heat waves: Global temperatures are forecast to reach record or near-record levels during the next five years, setting the stage for more deadly extreme weather, according to an annual report from the World Meteorological Organization and UK Met Office found, two of the world’s top meteorological agencies. There’s a 70% chance that the 2025-2029 period will be more than 1.5C hotter than pre-industrial times.

Canada wildfires are raging (again): Officials declared a state of emergency for the entire province of Manitoba on Wednesday as out-of-control fires threatened several communities. At least 20,000 people have evacuated and Montana, North Dakota and northern Minnesota are already seeing smoke. Graeme Bruce at CBC News has a wildfire tracker.

Projects nixed: Businesses have closed, canceled, or shrunk $14 billion in low-carbon manufacturing and power generation projects so far this year, Ben Geman reports for Axios. Plus the Energy Department announced the termination of 24 awards totaling $3.7 billion from the Office of Clean Energy Demonstrations, most involving carbon capture and decarbonization-related projects.

EPA cuts: New details from the EPA on Friday spell out how it seeks to trim 54.5% from its budget, one of the deepest reductions in the agency’s history. The 68-page “Budget in Brief” document lays out the terms of the EPA’s proposed 90.9% decrease in grants to states, Bloomberg Law reports. Cutting such grants leaves cities on their own to handle resilience, Grist reports.

Baked Alaska: The Trump administration announced on Monday that it plans to eliminate federal protections for millions of acres of Alaskan wilderness, applying its “drill baby drill” mantra to even the most pristine wilderness. Three cabinet officials took a tour of Alaskan oil fields on Monday as part of the announcement, the AP reports.

Not our beer too: Researchers checked craft beer from multiple states, major domestic brands, and several international labels for Pfas and found that all but one of 23 beers sampled contained the toxic “forever chemicals.” The levels detected in the beer were as high as 40 parts per trillion (ppt), the Guardian reports. 

California and Los Angeles

• California lawmakers are on the verge of the biggest reform to CEQA in decades, reports Liam Dillon for the LA Times. The two bills — AB 609 by Assemblymember Buffy Wicks and SB 607 by Sen. Scott Wiener — propose big, broad CEQA changes. My Legal Planet colleague Ethan Elkind has praise for one bill and not the other. 
• After the January fires in Altadena and Palisades, LA County water systems have been affected in different ways: Smaller water systems were hit the hardest, according to a study by UCLA researchers released last week. In Altadena, the burned areas covered 79% of Rubio Cañon Land & Water Assn.’s service area and 88% of Las Flores Water Co.’s territory.
• An LAist investigation by Jacob Margolis published in May follows the trail of construction and demolition debris that has been illicitly dumped on remote desert properties for months. Margolis followed up this week with a look at how LA County planned to send Eaton fire debris to the desert, but had to cancel its plans when residents found out. 
• Alison F. Takemura reports on an affordable housing complex for older adults in Sacramento that “not only slashes the complex’s health-harming and planet-warming pollution — it also made financial sense for both the owner BRIDGE Housing and its tenants.” It could be a blueprint for how projects can electrify and keep costs low for tenants. 
• Lawmakers say plastic waste regulations don’t go far enough. In a letter to Gov. Newsom and others, 23 state lawmakers led by Senators Catherine Blakespear and Ben Allen said the proposed regulations undermine the letter and intent of SB 54, the landmark plastics law. Susanne Rust has the story for the LA Times. 
• The New York Times shines a spotlight on LA’s preparations for the Olympics. “L.A. is not quite ready to be a mega-event capital and welcome all these people,” Alissa Walker, the editor of Torched, tells the Times. “And what do we get out of it?”
• The latest forecast from the federal Colorado Basin River Forecast Center shows that the river’s flows into Lake Powell will probably be about 46% of average over the next three months and put strain on So Cal’s supply, Ian James reports for the LA Times. 
• For the second year in a row, California is on track to have a record-breaking number of valley fever cases. Karen Garcia reports that there is a climate connection, as public health officials say the cases are driven by longer, drier summers.
• The Christian Monitor has a deep dive on “why California plays such an outsize role in auto emissions standards,” and talked with my UCLA colleague Ann Carlson about why this has sparked unprecedented (and questionable) pushback from this Congress. Carlson was a guest on the Living On Earth podcast talking about California’s authority to regulate air pollution and the importance of our car and truck waivers.
• California celebrated the launch of CalHeatScore,  a new tool to forecast and rank heat severity risks and connect Californians with available resources to stay safe during extreme heat events. Developed by the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment, the tool brings together ZIP-code level data to provide locally tailored guidance.

COP30 and NDCs

• This week, WRI updated the NDC Tracker hosted on Climate Watch. It tracks which pledges have been submitted and now also quantifies their impact on emissions. It shows that unconditional targets from the 22 NDCs submitted thus far — representing 21% of global emissions — could collectively slash an additional 1.4 gigatonnes of CO2e by 2035, compared to countries’ previous 2030 targets. 
• COP30 President André Corrêa do Lago, in an interview with Fiona Harvey for the Guardian, says climate answers have to come from the economy and economists. “Most of the answers have to come from the economy,” said Corrêa do Lago. “Because we have now enough science, enough demonstration of how climate change can affect people’s lives. Now we need answers [in the form of policy measures]. We need economists to rally.”

Energy

• Clean energy lobbyists are intensifying their efforts to save Inflation Reduction Act tax credits as negotiations over Trump’s big budget bomb head to the Senate this week, E&E News reports.
• Robinson Meyer has three concrete suggestions for how the Senate can fix the budget bill from the “more ill-considered urges of the House of Representatives” wreaking havoc on the country’s energy policies.
• Avishay Artsy and Noel King take a look at the ‘white gold rush’ for critical minerals heating up in Lithium Valley for Vox’s “Today, Explained” podcast, including a colorful history of the Salton Sea’s “scams, schemes, and scoundrels.”
• Gas pipeline projects that were off are now on again and it comes after the negotiations between Trump and New York’s Governor over offshore wind. 
• In April, Spain, Portugal, and other regions experienced an unexpected energy grid failure, knocking out power. A new CAAD briefing has details on how speculation about the power outage gave way to conspiracy theories and disinformation blaming renewables and net-zero goals. 
• The Supreme Court on Thursday placed new limits on NEPA or environmental reviews for major infrastructure and energy projects such as pipelines and railways. “Simply stated, NEPA is a procedural cross-check, not a substantive roadblock,” Justice Brett Kavanaugh, writing the opinion for the court.
• PG&E has restarted The Elkhorn plan, its huge grid battery following Moss Landing fire next door, just in time for summer heat, reports Julian Spector for Canary.

Other stories, studies, policy papers worth your time

• America’s ever-growing list of new sports stadiums are “monuments to the poverty of our civic ambitions and our inability to summon the collective will to use the land we have for the things we need,” writes Binyamin Applebaum at NYT Opinion. ‘They are distractions from our inability to build anything else.”
• Last year, the remaining residents of a sinking village near the Bering Sea left behind their former home as part of a federally funded effort to resettle communities threatened by climate change. Nearly 300 people from Newtok have moved nine miles across the Ninglick River to a new village known as Mertarvik. But much of the infrastructure there is already failing, the Washington Post’s Emily Schwing and Ash Adams report. 
• The Sabin Center for Climate Change Law has a new report looking at how the Bureau of Land Management can enforce cleanup obligations for oil and gas wells on federal lands under the Mineral Leasing Act.

Media Industry News

• Michael Grunwald author of the New New Deal (and lots of columns about food and climate) has a new book out called “We are Eating the Earth” that explores ways to fix our food system. 
• Inside Climate News has started a YouTube video series called “Sunday Morning” in which executive editor Vernon Loeb discusses a big story of the week with one of their reporters. Not everyone’s idea of Sunday morning cartoons, but it may be yours!

Big Oil, CEQA, climate liability, lawsuits, Litigation, The Drain, Youth v. Gov.