Just about every major law school is incorporating climate change lawsuits in its curriculum. That means we’ll soon have thousands more lawyers schooled in bringing these cases – with hundreds more cases likely in the near future, depending on the Supreme Court’s decision.
Multiple climate change cases have been brought to the Courts, mostly addressing violations of federal statutes and the extent of an agency’s powers, mostly targeting the EPA’s Clean Water Act and various wetlands statutes. These claims “have not always fared well before the conservative-majority court. In 2022, the justices limited the Environmental Protection Agency’s authority to regulate carbon dioxide emissions from power plants.”
However, a new type of case is brewing in which one state (or locality) sues a private actor for harm to residents and their property.
What’s New on the Environmental Event Horizon
The two most recent cases do not bode well for the oil and gas industry defendants. In one case, the city of Honolulu sued oil and gas companies for deceptive advertising, alleging they deceived the public about how fossil fuels contribute to climate change. The Supreme Court allowed the Honolulu case to proceed, denying the oil companies’ entreaty to block the suit, which seeks billions of dollars in damages for impacts such as wildfires, rising sea levels, and severe storms.
In another case, the city of Boulder sought damages for public and private nuisance, trespass, unjust enrichment, and civil conspiracy, alleging that the defendants’ fossil fuel activities contributed to climate change and that the defendants misled the public about their impacts. The case names Exxon Mobil Corporation and three Suncor Energy companies as defendants. alleging that their fossil fuel activities contributed to climate change and caused damage.
The defense moved to dismiss the claims on the grounds that they were preempted by federal law, e.g., the Clean Air Act (CAA) and federal common law. In the Honolulu case, the court allowed the state-court case to proceed unobstructed.
However, on February 23rd, in the Boulder case, the Supreme Court agreed to reconsider the defendant’s preemption argument, questioning the state court’s ruling that allowed the case to proceed. In essence, the Boulder case is giving the defendants a chance to re-argue that federal law preempts the cases. The argument will not address the merits; rather, it will signal whether states are empowered to bring these cases in state court or whether they are barred by federal statute.
The [Energy] companies argued that they
“are facing numerous lawsuits in state courts across the Nation seeking billions of dollars in damages for injuries allegedly caused by the contribution of greenhouse-gas emissions to global climate change. But as the Court has recognized for over a century, the structure of our constitutional system does not permit a State to provide relief under state law for injuries allegedly caused by pollution emanating from outside the State.”
Warning: Curve Ahead.
The Colorado case has some novel twists, reminiscent of San Francisco’s UPF case, including common-law tort claims. “Specifically, Boulder asserts claims for public and private nuisance, trespass, unjust enrichment, and civil conspiracy, and it seeks damages for the role that defendants' production and processing of fossil fuels have allegedly played in exacerbating climate change.”
The plaintiffs’ claims are imaginative: Among other claims, Boulder alleges
- A public nuisance claim that defendants’ fossil fuel activities contributed to climate change, interfering with public rights, including the use and enjoyment of public spaces, public health and safety, and safe travel and commerce.
- A private nuisance claim, alleging that the defendants substantially and unreasonably interfered with the city’s use and quiet enjoyment of its real property.
- Boulder brings a trespass claim, alleging that defendants caused physical invasions of its property through floodwaters, fires, hail, rain, snow, wind, and invasive species, resulting in substantial damage.
For the results of all these “nefarious” deeds, that Mother Nature herself would be jealous of, Boulder seeks “monetary damages to compensate it for its past and future costs to mitigate the impacts of climate change….”
Should the Supreme Court allow the case to proceed, we can expect to see a torrent of states and localities instituting cases for damages allegedly caused by oil, gas, and “beautiful clean coal,” – not for causing direct harm, personal injury, or property damage, but for indirect damage caused by storms, fires, floods, and other “natural” disruptions allegedly generated by climatic conditions “caused” by the defendants.
Where Did the Good Old-Fashioned Common Laws Go?
Theoretically, the doctrine of proximate (or direct) cause [1] should bar these common law tort cases, and there is still a chance it might. Right now, the court is only dealing with whether they can be raised at all in federal court. Even if the answer is yes, the plaintiffs still must prove direct causation, which may be simpler in nuisance and trespass cases.
One problem is that the doctrine of public nuisance has a rather attenuated standard for proving causation (one reason the California UPF case relied on the claim, although its propriety has yet to be ruled on). Even those scientists who accept the link between increased greenhouse gas emissions and climate change will be hard-pressed to prove that a specific fire, flood, or environmental cataclysm was caused by a particular defendant’s emissions and, in turn, damaged a piece of property. To my mind, it’s unlikely that the plaintiffs in these cases will ultimately prevail. However, the costs of the lawsuits, which, at the end of the day, we will all bear, shouldn’t be legally sanctioned. For that to happen, we will need creative lawyering or intrepid legislators, neither of which is wanting.
[1] Proximate cause is a fundamental legal and insurance principle defining the primary, direct cause of an injury or loss, establishing liability when a sequence of events, unbroken by intervening causes, leads directly to the damage. It determines if a party’s actions are closely enough related to an injury to be legally responsible, focusing on foreseeability and direct, natural consequences
