Coastal cities battle industry over climate change

Last week at the U.S. District Court in San Francisco, a climate scientist from the University of Oxford stood flailing his arms awkwardly in a circular motion, trying to explain to a federal judge the molecular basics of climate change. It’s like this, the scientist, Myles Allen, told the judge, William Alsup, clenching his fists and waving them energetically on either side of his face. “If you imagine my head is the positively charged and my hands are the negatively charged,” Allen said, then a person would understand how carbon dioxide absorbs infrared radiation to warm the Earth. Presiding over the packed courtroom, Alsup squinted down at the scientist and listened. It was unclear whether he fully understood the pantomime.

Allen spoke as a witness, during a five-hour hearing that was part of a pair of historic court cases in which the cities of San Francisco and Oakland are suing five of the world’s biggest oil companies — ExxonMobil, Chevron, BP, ConocoPhillips and Shell — to hold them accountable for local consequences of climate change. The cities filed complaints in September, requesting that the corporations be forced to pay for infrastructure for the cities to adapt to impacts such as sea level rise.

The “looming threat” of the rising Pacific Ocean’s encroachment on public and private property in the San Francisco Bay Area “is no accident,” the plaintiffs say in the complaint. “Rather, it is an unlawful public nuisance of the first order.” The oil companies “did not simply produce fossil fuels,” the complaint says. “They engaged in large-scale, sophisticated advertising and public relations campaigns to promote pervasive fossil fuel usage and to portray fossil fuels as environmentally responsible and essential to human well-being.”

The defendants contend they’re not liable because it’s nearly impossible to tie specific climate impacts like sea level rise to specific causes, such as the production or burning of Chevron oil. Their lawyers also say economic and population growth are to blame, not energy companies. As ExxonMobil wrote last week in a motion to dismiss the case: “The Cities seek to hold ExxonMobil and four other energy companies uniquely liable for virtually all of the alleged negative consequences of the energy system that humanity has developed and 
relied on since the Industrial Revolution.” 

The San Francisco case is one of several lawsuits in recent years going after fossil fuel producers for significantly contributing to climate change. After Hurricane Katrina struck communities on the Gulf Coast in 2005, citizens sued oil companies for causing greenhouse gas emissions that increase the likelihood of megastorms, but the case was dismissed. In 2009, a 9th Circuit judge dismissed a case brought by the Indigenous village of Kivalina, Alaska, against 22 energy companies. The federal judge opined that it was a matter for federal regulatory agencies, not the court. The U.S. Supreme Court came to a similar conclusion in its 2011 dismissal of a suit eight states and New York City filed against American Electric Power Company.

Two other major cases have yet to be decided. Twenty-one children and young adults filed suit in 2015 in the U.S. District Court of Oregon against the federal government for allowing the burning of fossil fuels for decades. In 2016, the Conservation Law Foundation sued ExxonMobil in the U.S. District Court of Massachusetts for violations of environmental laws and for deceiving the public by intentionally undermining climate science.

There have been more California cases, too. In the past year, San Mateo and Marin counties, and the town of Imperial Beach, California, have all filed suits against fossil fuel companies. 

Most climate cases against energy companies to date have failed because of the difficulty of pinning a particular event or local impact on the global trend of climate change, let alone on a specific entity producing fossil fuels. Yet an emerging field of research called “attribution science,” which determines how much climate change has increased the likelihood of an extreme weather event, could help lead the way.

For instance, the American Meteorological Society releases annual reports culling peer-reviewed studies from around the globe, looking at weather from a climate perspective. The report from January 2018 was the first to conclude that climate change not only increased the likelihood of certain events, such as recent heat waves in Asia, but that they would not have occurred without climate change. Experts say this type of research may strengthen future lawsuits attempting to hold oil companies accountable.

Last week’s hearing was a “tutorial” requested by Alsup, the judge, to better educate himself on climate science. Each side had a chance to present their version of climate science and its evolution. The plaintiffs called multiple scientists to testify. Chevron's private attorney, Theodore Boutrous, spoke for the defendants. Boutrous relied heavily on reports by the well-regarded International Panel on Climate Change and quoted claims that it is “extremely likely” humans have caused the phenomenon. Boutrous didn’t deny those claims, but he repeatedly pointed to uncertainties inherent in the science.

For the plaintiffs, Allen made clear he would not be tackling allegations in the complaint about how much the companies knew about climate change while continuing to tout fossil fuels as a sustainable option; those contentious details would be addressed at a later date. The judge agreed, reminding attorneys and witnesses that he was there to learn the facts. “I know that there are politics sometimes involved in this, but let’s stick to the science if we can,” Alsup said.

The judge instructed the four other energy companies to file documents indicating whether or not they agree with Boutrous’ testimony for Chevron. “You can’t get away with sitting here in silence,” Alsup said. 

Tay Wiles is an associate editor for High Country News and can be reached at [email protected].

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