In California, communities are battling multi-billion-dollar companies in court

We got a lawyer to explain it to us (in plain English, even!)

Credit: Ken Lund

Oral arguments in California’s Ninth Circuit Court of Appeals this Wednesday marked the beginning of a showdown between major fossil fuel companies and the eight municipalities in California suing them for likely billions in climate damages.

If climate costs were a venus fly trap, the California version would look something like an Audrey Two.

Credit: Giphy

In 2018 alone, nightmarish wildfires left the state an estimated $400 billion in losses, demolishing thousands of homes, scorching 8.8 million acres and taking dozens of lives in the process. Last year, we estimated that California will need to spend $22 billion on seawalls or other coastal barriers to defend against unavoidable sea level rise by 2040. These are just wee pieces of an ever-growing pie: floods from rising seas and storm surge, long periods of drought, extreme weather, and a host of other harrowing climate impacts will require billions more for adaptation and recovery. 

So faced with a couple of options — abandon homes and neighborhoods to the tide, raise taxes, cut funding for services like public schools and healthcare, or sue the oil and gas giants who made the mess, lied to the public about it, and stood in the way of anyone trying to fix it — eight municipalities have decided not to royally screw their constituents, and took the industry to court.

So why was Wednesday so important? 

Here’s where I’ll get out of the way and bring in Alyssa Johl, legal director for the Center for Climate Integrity, to help explain. My questions (in bold) and Alyssa’s answers, below.

This is an online newsletter. In 240 characters or less, what are these cases about?

14 US cities/counties, 1 state & 1 trade association sued major fossil fuel companies to recover the climate costs and damages caused by a 30+ year campaign of lies and deception, for which they should be held liable #makepolluterspay

Lawyers love hashtags, who knew (definitely not Exxon). So what happened during Wednesday morning’s arguments? Are you happy with how they went?

Eight municipalities in California had an opportunity to present their cases to a Ninth Circuit panel of three judges on Wednesday. The arguments went well, the judges were engaged and critical of the industry’s arguments. That’s not surprising considering that the law is favorable for plaintiffs and for moving these cases back to state court where they belong, and where the specific harms they are facing in terms of adapting and building resilient communities can be addressed. There are many complex issues to be resolved but we’re optimistic that they will be decided in favor of the cities and counties.

Why were the San Francisco and Oakland cases originally dismissed? What prompted them to appeal that decision?

Essentially, the judge adopted the industry’s argument that these cases are too large for the court system to address — that this is a political issue to be resolved by the executive or legislative branches. Judge Alsup argued that climate change is a global problem that needs a global solution, which can’t be delivered by the courts, and dismissed the cases.

But these cases — and the legal theories behind them — closely resemble litigation that has been brought against asbestos, and tobacco, and opioid manufacturers. These companies sold a product they knew to be dangerous to consumers and the general public, they hid their knowledge of those dangers, and they should be held accountable for their actions and the harm they caused. And like the other six municipalities that have brought these cases, San Francisco and Oakland claim that their cases have no business being heard by federal court. 

The Center for Climate Integrity has submitted amicus briefs in support of these cases. What is an “amicus” brief, exactly?  What did they say?

An amicus brief is also known as a “friend-of-the-court” brief, and it’s submitted by a third party to the lawsuit with some sort of expert opinion or insight on the legal or factual issues at the heart of the case. Ours was organized on behalf of historians of climate science and others with a deep understanding of what the industry knew about climate change, when they knew it (which was as early as the 1950s), and the campaigns of deception and climate denial they then organized over the following half a century. We documented and submitted this body of evidence to the court so they can better understand the industry’s history of deception and fraud, which continues to this day.

Settle this for all of our readers. Is it amicus or am-EE-cus?

A-mi-kus singular, uh-MEE-kee, hard ‘c’, plural.

How are these cases different than other climate lawsuits that have been filed?

These cases are being brought against the industry as opposed to the federal or state government. Cases brought against governments, whether federal or state, are really about the government’s responsibility to create a system that doesn’t cause harm. The damages lawsuits, on the other hand, are about the harm that has already been caused by fossil fuel companies, and how they should be held financially liable for past and present damages. 

These cases are also fundamentally different from an earlier generation of lawsuits that was brought on behalf of municipalities and states against industry, which were focused on emissions rather than the products themselves. 

Maybe most importantly, these cases are about the fact that the industry had a responsibility as producers, as manufacturers, not only to warn the public and to share what they knew about the causes and consequences of climate change and the dangers that their products would cause, but also not to lie and deceive and create doubt about climate science in the way that they did. That is, in other words, what’s known as consumer fraud. 

Credit: Giphy

What sort of impact will a ruling from the Ninth Circuit in the California cases have on other climate damages cases across the country? 

They’ll have a very direct impact on the eight California lawsuits, but also on many other lawsuits that might be filed within the Ninth Circuit’s jurisdiction — cases brought in Hawai’i, Oregon, and Washington, for instance. A favorable outcome would essentially give the green light for new and existing lawsuits to move forward in state court.

As for the effect that it will have on other lawsuits around the country? All eyes will be watching. The Ninth Circuit is an influential court, and how these eight suits might move forward and play out is significant. Once this court issues its decision, other circuits will be looking to it as a model for how they might analyze and make their own findings. That said, the Fourth Circuit will issue its decision on whether the Baltimore lawsuit should be heard in state or federal court first — the Ninth Circuit would certainly consider this as it reaches its own decision.

The actual Super Bowl was last week. Do you think it’s fair to call this the big game of climate liability? 

At this moment in time? Absolutely. These were the first lawsuits to be filed, so people have been watching them closely from the very beginning. Following this argument it will be a waiting game. It’s hard to predict when that decision will be released, but I think it’s safe to say by the end of this year we will have an outcome and will be moving forward, ideally in state court.

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