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Duluth News Tribune Op-Ed: Innovation, not baseless litigation, the right path to climate solutions

Climate change is a byproduct of modern society. Energy production allows us all to turn on our lights, heat our homes, power our workplaces, and produce the goods we rely upon for our daily lives. Most major companies — including traditional energy manufacturers — understand these facts and are now actively driving climate solutions. Rather than join this effective and inclusive approach, some prefer to make this issue political, look backward, and point fingers. They advocate lawsuits against energy manufacturers for “causing” climate change. Unfortunately, Minnesota has decided to join this litigation campaign, filing a lawsuit in 2020 against several energy manufacturers and a national trade association (“Ellison files lawsuit against fossil fuel giants for ‘campaign of deception’ on climate change,” June 24). This litigation blame game is a counterproductive distraction. It is also expensive for every person, family, and business. If these lawsuits are successful, each person’s energy bills will go up by hundreds, if not thousands, of dollars each year. Many people cannot afford these costs, particularly when even the lawyers and politicians behind these lawsuits fully acknowledge the litigation will do nothing to solve climate change.

Read the full article here.

Boulder Daily Camera: Appeal in Boulder climate change lawsuit in hands of 10th Circuit panel

In oral arguments presented by telephone due to the coronavirus pandemic, the next chapter in the city of Boulder and Boulder County’s lawsuit against several fossil fuel companies seeking compensation for the cost of combating the effects of climate change played out before the United States 10th Circuit Court of Appeals in Denver this week.

Kevin Hannon, a Denver-based attorney representing the Boulder governments, and the third plaintiff to the suit, San Miguel County, said arguments were presented in about 35 minutes Wednesday to a three-judge panel of the 10th Circuit. Under appeal by the corporate defendants in the case is the ruling in September by U.S. District Court Judge William J. Martinez, which sent the matter back to Boulder District Court, where it was originally filed in April 2018.

The defendants in the case, Exxon Mobil Corporation, Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Suncor Energy Inc., had previously successfully moved in June 2018 to have the venue switched from state court in Boulder to federal court; federal courts have proved more favorable ground for oil and gas companies in some similar cases elsewhere in the U.S. The Boulder/San Miguel case is the first climate change lawsuit seeking to hold the extraction industries accountable for the cost of coping with climate change from a landlocked state.

The Boulder climate change case was heard in just the second day of the justices’ handling their docket by telephone.

Arguments on behalf of the city and two counties were made by Rick Herz, senior litigation attorney for Washington, D.C.-based EarthRights International. Marco Simons, that organization’s general counsel, was listening in on the arguments, and said on Thursday that much of the debate was around whether the 10th Circuit could even properly hear arguments over venue, at this point. Simons maintained that litigants only have “a very limited ability to appeal, from orders sending a case back to state court.”

Simons said the companies also argued “It should be in federal court because, in their view, matters concerning climate change implicate lots of federal policies and concerns, and therefore they should be in federal court. And in our view, that’s just, first of all, not true. But second of all, that’s not enough for federal jurisdiction because of the implications for climate policy that happen at the state level every day, without any problem.

“State courts commonly hear all kinds of claims that may have national or even international implications that concern nationwide practices or global practices. And that just does not qualify them for federal” court. He cited, as one example, litigation concerning the opioid epidemic, which has ravaged many parts of the country, that has occurred in state courts.

In support of the defendants, Phil Goldberg, Special Counsel to the Manufacturer’s Accountability Project, said in a statement, “The most telling moment from (Wednesday’s) climate litigation hearing in the Tenth Circuit is when the lawyer for Boulder County acknowledged that this lawsuit was about going after the worldwide sales ‘across the entire enterprises’ of energy manufacturers.

“Trying to regulate worldwide sales of energy through tort liability is not the role of the courts or state law. Selling Coloradans the energy needed to power their homes, businesses and communities is not unlawful. There is no doubt that we need to mitigate global climate change, but scapegoating energy manufacturers and using state tort law for this shared global challenge is baseless and not productive.”

Goldberg said that if Boulder officials “really want to do something about climate change, rather than just try to score local political points, they should work with manufacturers on energy innovations. Innovation and collaboration, not litigation, is the only way to make a real difference for Colorado in the fight against global climate change.”

Hannon said it is not known when the appellate panel will rule on the arguments it heard Wednesday. Simons suggested a window as broad as between “two weeks to 12 months” could be possible.

The full article can be read here.

E&E News: Honolulu sues Big Oil for climate damages

Honolulu yesterday launched the latest legal battle against oil and gas companies over who should pay for climate change impacts like sea-level rise.

The city, which announced its intent to sue last year, submitted its challenge in the Oahu 1st Circuit Court after approval from the City Council (Climatewire, Nov. 6, 2019).

Josh Stanbro, Honolulu’s chief resilience officer, said during a press conference announcing the lawsuit that the city is following the footsteps of dozens of other municipalities challenging oil companies for “unjustly having to bear climate change and its impacts due to the information that’s been withheld over time by the fossil fuel corporations.”

He said the complaint echoes tobacco and opioid nuisance litigation, noting that fossil fuel companies knew for “decades and decades” that their products would cause “tremendous” local damage and that taxpayers would end up footing the bill. Stanbro noted that climate change may have cost Honolulu billions of dollars but that the exact figure would emerge during trial in the case.

“Instead of disclosing that information, [oil and gas companies] actually covered up the information,” he said. “They promoted science that wasn’t sound and in the process have sowed confusion with the public, with regulators and with local governments such as ourselves around what the true damages of these products were.”

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, said the lawsuit will cost taxpayers more by “scapegoating” the industry.

“People throughout Honolulu and the entire state of Hawaii need energy to power their homes and businesses, as well as the ability to bring tourists, goods and services to the islands,” he said. “The truth is that the best way to fight climate change is to engage with the manufacturing community on the major innovations.”

Maui County also announced plans last fall to fight the oil industry for compensation, but the county has yet to file its lawsuit.

The full article can be read here.

Legal Newsline: Baltimore gets favorable decision letting its climate change case transfer out of federal court

The U.S. Court of Appeals for the Fourth Circuit has refused to reverse a remand order sending the City of Baltimore’s climate lawsuit to Maryland state court, virtually ensuring ExxonMobil, Chevron and other oil companies will face trial seeking billions of dollars in damages in an unfavorable venue they were hoping to avoid.

A three-judge panel on the appeals court rejected the oil companies’ argument the case should be removed to federal court under a statute that prohibits state courts from hearing lawsuits relating to acts by federal officers or under their orders. The defendants cited contracts with federal agencies and offshore drilling leases they said showed they were operating under the orders of federal officials.

The appeals court disagreed, saying the contracts cited weren’t enough to give the court jurisdiction. Federal appeals courts have extremely limited jurisdiction to overrule remand decisions by district courts, the Fourth Circuit panel said. The district court rejected the defendants’ other arguments against remand, including that the lawsuit involves purely federal questions of energy policy, and the U.S. Supreme Court declined to intervene while the appeal to the Fourth Circuit was pending. 

Last June, U.S. District Judge Ellen Hollander ruled that the climate lawsuit should return to state court, rejecting the reasoning of federal courts in New York and San Francisco that previously ruled climate lawsuits don’t belong in court at all. Baltimore is represented by Sher Edling, a law firm working under a contingent-fee contract. 

Phil Goldberg, a lawyer for the Manufacturer’s Accountability Project, said climate change “is not a liability issue for state or federal court.”

“This effort to try to scapegoat others may score political points, but it is not productive,” he said in a prepared statement. “If Baltimore officials really want to do something about climate change, they should work with manufacturers on energy innovations for the City, not waste everyone’s time with this baseless litigation.”

Other courts to consider climate litigation have found it presents non-justiciable questions of policy. In a 2018 decision, U.S. District Judge William Alsup dismissed lawsuits by San Francisco and Oakland, saying the scope of the legal theory developed by plaintiff lawyers was “breathtaking,” and would “reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.” A federal judge dismissed New York City’s climate lawsuit also in 2018 and in December a state court judge in New York rejected that state’s “ill-conceived” lawsuit against ExxonMobil over allegations it misled investors about climate change.

The full article can be read here.

Bloomberg Environment: Baltimore Climate Case Against Big Oil Kept in State Court

Baltimore’s legal effort to hold fossil fuel producers liable for climate change can proceed in the state court where it was filed, a panel of judges ruled Friday in a blow to companies facing climate litigation across the country.

The U.S. Court of Appeals for the Fourth Circuit sided with Baltimore in the latest stage of its lawsuit against BP Plc, Exxon Mobil Corp., and other multinational energy companies—one of a dozen pending cases targeting the industry for its role in rising global temperatures.

Chevron Corp. has already vowed to challenge the decision.

Baltimore says oil and gas companies should cover the costs of raising local streets, enhancing stormwater infrastructure, and making other local investments to address damages linked to climate change. The city and the companies disagree on whether the case belongs in state or federal court.

The full article can be read here.

San Francisco Chronicle: Can San Francisco, Oakland win billions from the oil industry for climate change?

A handful of California cities and counties want billions of dollars from the oil industry for the problems arising from climate change, and their far-reaching legal push is about to face a crucial test in a Pasadena courtroom.

On Wednesday, the Ninth U.S. Circuit Court of Appeals is scheduled to hear arguments from three counties and five cities, including San Francisco and Oakland, on why their lawsuits against several oil companies should proceed in state court rather than federal court. The widely watched challenges are thought to have better odds in state court.

The eight California communities behind the suits are at the forefront of a small but growing effort nationwide to hold oil companies financially responsible for rising seas, wildfires and other climate-related havoc. The new legal tactic, now being employed by New York, Baltimore and other cities and counties, comes as global warming has become a low priority during the Trump administration.

The decision on which court should settle the suits will directly affect only the California municipalities. In addition to San Francisco and Oakland, they include Richmond, Santa Cruz and Imperial Beach (San Diego County), and Marin, San Mateo and Santa Cruz counties. However, the rulings in Pasadena also feed into a national debate over court jurisdiction on the matter, which legal experts say may ultimately prompt the Supreme Court to weigh in on the climate issue.

The full article can be read here.

CommonWealth Magazine: New York ruling is a warning to Healey

A New York judge last week soundly rejected a lawsuit by that state’s Attorney General that cuts the legs out from climate lawsuits by Massachusetts, Rhode Island, and other governments. The New York lawsuit, which sought up to $1.6 billion from ExxonMobil, was widely hailed as “the trial of the century” by those advocating legal action against energy manufacturers over climate change.   

Global climate change is one of the defining political issues of our time, and for good reason. There are urgent, widespread efforts to figure out how to mitigate the impacts of modern society on our planet. This includes sourcing and using traditional energy more efficiently, finding ways to capture or suppress the release of greenhouse gases, and developing sustainable renewable energy. 

Several years ago, some climate activists decided that the best way to try to steer this debate to their desired policies was to vilify energy manufacturers. Their goal, an internal email showed, was to get their friends in government to “delegitimize” the companies, their workers, and supporters as political actors. They met with then-New York Attorney General Eric Schneiderman, Massachusetts Attorney General Maura Healey, and several mayors around the country. 

What followed was a series of investigations and lawsuits seeking to reinforce this vilification—regardless of whether the allegations were true. Healey launched an investigation, saying ExxonMobil misled consumers about climate change.  Rhode Island filed a lawsuit against a bunch of oil and gas manufacturers, saying they should pay for climate-related local infrastructure projects for illegally “conceal[ing] the dangers” of climate change.  

The full article can be read here.

The San Diego Union – Tribune: Imperial Beach presses forward on climate lawsuit against fossil fuel companies

The state of New York may have suffered an emphatic defeat in a legal battle against ExxonMobil last week, but that has not deterred the city of Imperial Beach from pursuing its own lawsuit looking to force 18 energy companies in the oil and coal sectors to pay for damages associated with rising sea levels.

“We’re going full-speed ahead,” Imperial Beach Mayor Serge Dedina said Monday. “The reality is the fossil fuel industry has caused climate change and they need to pay for it.”

On Dec. 10, a New York Supreme Court Justice ruled the state’s attorney general “offered no testimony from any investor who claims to have been misled” by ExxonMobil in a lawsuit that claimed the oil giant deceived investors about the impacts of climate change.

Justice Barry Ostrager’s 55-page ruling not only rejected the state’s claim the company committed fraud but said there “was not a single ExxonMobil employee whose testimony the Court found to be anything other than truthful” while the testimony of the state’s expert witnesses was “eviscerated on cross-examination and by ExxonMobil’s expert witnesses.”

The case was dismissed “with prejudice,” which means it cannot be reintroduced in New York.

The full article can be read here.

Wall Street Journal: Should Fossil-Fuel Companies Bear Responsibility for the Damage Their Products Do to the Environment?

The oil-and-gas industry has faced a barrage of lawsuits in recent years from cities, counties and states across the U.S. seeking damages for the costs they say they have incurred as a result of climate change.

Some lawyers are going after big oil firms for securities fraud, saying they knew for decades that climate change posed a material risk to their businesses but failed to fully disclose the danger to investors. Other lawyers are arguing that extracting and selling oil and gas is a public nuisance because it leads to greenhouse-gas emissions, which in turn results in the harmful impacts of climate change.

No suit has been successful yet, and some have been thrown out in federal court. But a handful have been allowed to move forward.

Those who believe the oil-and-gas industry bears some financial responsibility for the damage caused by climate change say that in much the same way that tobacco firms hid the dangers of smoking from consumers, fossil-fuel companies foresaw the harm their products would cause yet did nothing to avert it or warn the public.

Opponents reject that comparison, saying fossil fuels, unlike tobacco, are essential and used by everyone. Reducing emissions isn’t a matter for the courts, they contend, but an issue of public policy.

Justin Gundlach, an attorney at the Institute for Policy Integrity at the New York University School of Law, argues that fossil-fuel companies should be held accountable for their damaging contributions to climate change.

Linda Kelly, senior vice president, general counsel and corporate secretary at the National Association of Manufacturers, makes the case against that.

The full article can be read here.

Colorado Sun: We need more elected officials who seek real climate solutions – not lawsuits

As the need to address climate change mounts, public officials are considering a wide range of responses.

Most elected official are focusing on a dual track: stepping up efforts to develop cleaner-burning energy sources and creating incentives for manufacturers to innovate new green technologies so that all of us can use fuel more efficiently. This is the right path.

A few officials, including right here in Colorado, have chosen a less productive path.

They are suing energy manufacturers for selling us the energy we use, saying that climate change is all their fault and they need to do something about it.

Last year the City of Boulder, Boulder County and San Miguel Counties filed one of these lawsuits. They signed up for litigation that is being shopped around the country by out-of-state trial lawyers seeking to make money off of this shared, global challenge. This is the wrong path.

Fortunately, there are many voices of reason emerging in this debate — people who are focused on seeking real solutions.  One of them is Colorado’s Attorney General Phil Weiser.

He opposes these lawsuits, saying he is “unconvinced” this litigation will be useful at all in the effort to deal with climate change. He continued that “the major reason that we have really reduced our carbon footprint here in Colorado is by moving from coal to natural gas,” so “it’s not an obvious move that we would hold liable oil and gas producers.”

Attorney General Weiser’s focus on solutions rather than blame makes sense. He is also right about the shift from coal to natural gas.

Nationally, the Energy Information Administration reported a 28% decrease in carbon emissions from power generation between 2005 and 2017. In fact, in 2016, greenhouse gas emissions were the lowest they had been since 1992.

Over the past few years, natural gas has also become the focal point for R&D into renewable and cleaner-burning fuel technology, including algae-based fuel, carbon capture and sequestration, and even solar or wind power generation.

We do not need to sacrifice economic growth and jobs to fight climate change. Just the opposite — we can develop our businesses around the fight against climate change.

The full article can be read here.