Three California Climate Lawsuits Target Fossil Fuel Industry Responsibility

This week, three California municipalities – San Mateo County, Marin County, and Imperial Beach – filed complaints  against thirty-seven fossil fuel companies, seeking damages for the impacts of climate change. The plaintiffs argue that sea level rise has already done damage and cost money to study and prepare for. These costs will only grow as the rising oceans threaten coastlines, sewer systems, and transportation systems.

These suits allege that (1) fossil fuel companies knew about climate change for decades, and (2) actively sought to slow progress on regulation and change that would mitigate and combat its effects by sowing doubt about climate change among the public, and (3) profited immensely from doing so. The suits make claims under several theories of liability – including public nuisance, private nuisance, failure to warn, defective design, negligence, and trespass.

The core of these claims, which CIEL’s work directly confirms, is the simple fact that  the 37 defendants named in the complaint, knew that  through their extraction, refining, and/or formulation of their fossil fuel products, that they would actually and proximately caused  the impacts of sea level rise that the plaintiff’s now suffer.   In early 2016, the Center for International Environmental Law (CIEL)  released three document clusters detailing the deep history of the petroleum industry’s knowledge of and reaction to the discovery of climate change. The Smoke and Fumes project unearthed industry documents as far back as the 1950s demonstrating that major fossil fuel companies – including companies that would become ExxonMobil – as well as the industry association American Petroleum Institute (API) were aware of the risk of climate change far earlier than the public was aware or that they admitted.

The Smoke and Fumes documents show that, for the past five decades at least, the fossil fuel industry knew or should have known that fossil fuel combustion posed a grave risk to the environment, our physical infrastructure, and most importantly, human lives. Specifically, they demonstrate that Humble Oil (now ExxonMobil) was studying climate change in 1957; the American Petroleum Institute was warned clearly and directly about climate change in 1968. We know from a 1972 document that the research warning of climate change was distributed among member companies of API.

We also  learned that once the research studies were completed,  fossil fuel companies  developed communications apparatus to control how their research was disseminated. We know they pursued patents on electric vehicles, fuel cells, and carbon capture technology – preventing others from using these technologies – but did not champion the development of clean alternatives. The relationship between knowledge and responsibility is profound but clear: those who know or should know they are causing harm are generally responsible for that harm.

Consequently, where the link between knowledge and responsibility  is established, it also triggers questions about  what these companies could have done to prevent the harm. What if, instead of developing oil drilling platforms for arctic conditions, these companies warned us about the danger of climate change? What if we had the opportunity to build our roads, our airports, and our hospitals in different places or in different ways? What if we had chosen to invest in renewables forty years ago, instead of fossil fuels?

These counterfactuals may not have easy answers, but that does not negate the damage done by the fossil fuel industry in its effort to confuse the public and delay action on climate change. These three California municipalities are only the first in an expected wave of  litigation intended to bring the actions of this industry to light, and to – at least partially – compensate the public for the damages done.

These suits should serve as a clarion call for investors, regulators, activists, and investigators, for as much as we now know, there is still too much that we don’t. We need to know more about the behavior of these companies, their relationships to shadowy front groups and AstroTurf organizations, and their influence on domestic and global politics.

Just last month, the New York Attorney General revealed that ExxonMobil deleted nearly a decade of ex-CEO Rex Tillerson’s secret “Wayne Tracker” emails, potentially destroying evidence of wrongdoing and malfeasance. The public should be outraged; investors should be wary; regulators should be concerned.

These corporations have created an existential threat to the global community, and so far have done so with impunity. San Mateo County, Marin County, and Imperial Beach are trying to change that.

By Steven Feit, Staff Attorney with CIEL’s Climate & Energy Program.