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Will the law courts ultimately end the fossil fuel industry? Part 2 of a 4-part series.

Updated: Feb 1


Four of the 16 young litigants in a lawsuit against the state of Montana
Four of the 16 young litigants in a lawsuit against the state of Montana “We’re asking the government and the courts to do their job and protect us, along with the rest of Montana’s citizens and our incredible home state; this case is one big opportunity for the state to become a leader in preserving a safe, beautiful and prosperous future for Montana,” Grace Gibson-Snyder, a 19-year-old plaintiff, said. Photograph: Robin Loznak/Zuma Press Wire/Shutterstock

The Everlution Blog is devoted to discussing issues related to the ever increasing ecological footprint of human beings. If we have the determination, we can reduce that footprint, even with more population and more affluence. We have the technology to overcome human-induced climate change - the biggest issue we have ever faced. But we have to get going as our species is irreversibly altering the greenhouse has levels that have been stable for the last 800,000 years.


 

There has become a tsunami of climate litigation in recent years, much of which has been successful in

claims made against corporates and government agencies. In fact, there are 2,500 cases on foot

at this moment. These lawsuits are helping rewrite the public narrative on climate change and, in

some cases, are resulting in a real shift in government and corporate policy – whether they win

or lose.


This four part blog series titled Will the law courts ultimately end the fossil fuel industry? discusses the

impacts of current and potential litigation against the fossil fuel industry and governments which

support it.


Part 2:


So, what kinds of changes have the most influential lawsuits made?


To take the seminal climate lawsuit, at the culmination of the Urgenda case (as referred to in Part 1 of this series), the Netherlands' highest court ordered the Dutch government to cut greenhouse gas emissions by at least 25% by the end of 2020 compared with 1990 levels – this was calculated as its fair share to combat the climate crisis. The country raised its climate action ambitions and explicitly listed “Urgenda” measures in its national budget for 2022.


Litigation can also cushion a country's climate policy from political fluctuations. A recent far-right victory in the Netherlands' general election has raised concerns that the country's climate policy could be watered down. But the Urgenda decision set a minimum threshold for what the government must achieve.


Another clear example of a shift in policy happened here in a Australia, when the New South Wales environmental watchdog released a draft of its first climate plan after bushfire survivors succeeded in arguing that the agency had a duty to do so.


Some lawsuits have blocked particular polluting projects. In 2022, a Queensland court recommended that Waratah Coal's plans to build a huge coal mine in the Galilee Basin, in north-east Australia, should be rejected over its "unacceptable climate change impacts" following a case brought by a First Nations-led group of young activists. Environmental authorisation for the project, led by billionaire Clive Palmer, has since been denied.


"Judges are in an ideal position to adjudicate these types of issues because they can independently assess whether the government or corporation is creating a dangerous situation," says Sarah Mead, co-director of Urgenda's Climate Litigation Network. "And they can do so beyond the vagaries of the electoral cycle."


Mead says litigation can also trigger other institutions to consider the climate crisis. In South Korea, where campaigners are waiting for a result in the country’s first constitutional climate lawsuit, the Human Rights Commission has submitted to the court a forthright opinion condemning the national target to cut greenhouse gas emissions, which it says violates the rights of future generations.


Extent of influence

Memorial honoring those who died during heat waves in 2021. Credit: Stephanie Yao Long / City of Portland
Memorial honoring those who died during Oregon's heat waves in 2021. Credit: Stephanie Yao Long / City of Portland

Sometimes a legal victory goes on to have an impact well beyond its original borders.


A recent court ruling in the US, where 16 young people successfully argued that the state of Montana had violated their constitutional right to a "clean and healthful environment" by promoting the use of fossil fuels, was specific to the state's law, so does not set a direct legal precedent elsewhere. But law researchers such as Sarah Everhart, a law professor at Widener University, Pennsylvania, have said these developments give fuel to a growing US movement to add green provisions into state constitutions. This both clarifies government duties and gives campaigners a stronger legal basis on which to challenge a lack of climate action.


The Dutch case, meanwhile, inspired dozens of similar lawsuits being filed at national courts around the world, including in Germany, Belgium, Nepal and Columbia.


On 22 June 2023, Multnomah County, Oregon filed suit against several of the largest fossil fuel and coal-producing corporations, seeking to hold them accountable for the damages arising from the 2021 Pacific Northwest Heat Dome, one of the most deadly and destructive human-made weather disasters in American history. 


The County alleges that the combined historical carbon pollution from the use of Defendants’ fossil fuel products was a substantial factor in causing and exacerbating the heat dome, which smothered the County’s residents for several days.


The suit, filed in Oregon Circuit Court in Multnomah County, names Exxon Mobil, Shell, Chevron, BP, ConocoPhillips, Motiva, Occidental Petroleum, Anadarko Petroleum, Space Age Fuel, Valero Energy, Total Specialties USA, Marathon Petroleum, Peabody Energy, Koch Industries, American Petroleum Institute, Western States Petroleum Association, and McKinsey & Company.


Beginning on June 25, 2021, the Plaintiff, Multnomah County, was scorched by the most extreme heat event in its history. Over the course of three consecutive days, County temperatures reached highs of 108°, 112° and 116° Fahrenheit. All three of these high temperatures, up to 40 degrees above the daily average for the region, exceed those of any other day in the County’s recorded history. The extreme heat caused the deaths of 69 people, property damage, and the significant expenditure of taxpayer monies and County resources.


In the aftermath of the superheating event, several of the world’s most experienced and respected climate scientists conducted research to determine the heat dome’s causes. They published their findings in studies that were unanimous in their conclusion: This deadly event was caused by fossil fuel emissions, which polluted the atmosphere. Further, that pollution caused dramatic rises in global temperature, drought and the drying of regional soil. When those pollution-caused conditions combined with a dense high-pressure system that hovered over the Pacific Northwest, they converted the region’s typically mild climate into functionally that of a convection oven. 



Multnomah County Chair Jessica Vega Pederson speaks at a press conference June 22, 2023, announcing the county's lawsuit against fossil fuel companies in Portland, Ore., Thursday, June 22, 2023. The county is suing 17 oil and gas companies, alleging the burning of their products contributed to a deadly heat wave in 2021.  Monica Samayoa / OPB
Multnomah County Chair Jessica Vega Pederson speaks at a press conference June 22, 2023, announcing the county's lawsuit against fossil fuel companies in Portland, Ore., Thursday, June 22, 2023. The county is suing 17 oil and gas companies, alleging the burning of their products contributed to a deadly heat wave in 2021. Monica Samayoa / OPB

The lawsuit asserts, “The heat dome that cost so much life and loss was not a natural weather event. It did not just happen because life can be cruel, nor can it be rationalized as simply a mystery of God’s will. Rather, the heat dome was a direct and foreseeable consequence of the Defendants’ decision to sell as many fossil fuel products over the last six decades as they could and to lie to the County, the public, and the scientific community about the catastrophic harm that pollution from those products into the Earth’s and the County’s atmosphere would cause.”


The lawsuit alleges that the Defendants committed negligence and fraud, and created a public nuisance, all of which are well-established causes of action under Oregon state tort law. As attorney Jeffrey Simon, a partner at Simon Greenstone Panatier, PC, and a law professor of mass tort litigation observed, “There are no new laws or novel theories being asserted here. We contend that the Defendants broke long-standing ones, and we will prove it to a jury.” 


“What is new about this case,” said attorney Roger Worthington, a partner at Worthington & Caron, PC, is how the leadership of Multnomah County is utilizing irrefutable climate science (now called attribution science) to hold corporate polluters accountable for their role in causing a discreet and disastrous event, as well as recent wildfires.


Multnomah County has asserted that it will show that fossil fuel-induced global warming is already costing Oregonians lives and treasure. It says it will show that the normal use of fossil fuel products over time has imposed massive external, unpriced and untraded social, economic and environmental costs on the County. It says that they were aware of this price, and instead of fully informing the public, they deceived the County. The plaintiff has asked a jury to decide if it is fair to hold the polluters accountable for these avoidable and rising costs.


The County’s lawsuit seeks $50 million in actual damages and $1.5 billion in future damages.

In addition, the County seeks an abatement fund, estimated at $50 billion, to study, plan, and upgrade the public health care services and infrastructure that will be reasonably necessary to “weatherproof” the County from future extreme heat events and to safeguard the public health. 


In January last year, in a paper called “Assessing ExxonMobil’s Global Warming Projections”, researchers from Harvard and the Potsdam Institute for Climate Impact demonstrated that the company’s scientists accurately predicted climate change decades ago.


“What we found is that between 1977 and 2003, excellent scientists within Exxon modelled and predicted global warming with, frankly, shocking skill and accuracy only for the company to then spend the next couple of decades denying that very climate science,” Geoffrey Supran, lead author and former research fellow in the History of Science at Harvard told the Harvard Gazette.



Advertisement from circa 1957 = Exxon Humble Oil
In 1957, scientists from Humble Oil published a study tracking “the enormous quantity of carbon dioxide” contributed to the atmosphere since the Industrial Revolution “from the combustion of fossil fuels.” Exxon understood the science of climate change decades before it became public and spent millions to promote misinformation. Advertisement from circa 1957

In September 2023, the state of California launched a suit against five companies – ExxonMobil, Shell, BP, ConocoPhillips and Chevron – claiming they deliberately mislead the public about the dangers of their products.


In a statement to The New York Times, Ryan Meyers, general counsel of the American Petroleum Institute, said: “This ongoing, coordinated campaign to wage meritless, politicised lawsuits against a foundational American industry and its workers is nothing more than a distraction from important national conversations and an enormous waste of California taxpayer resources. Climate policy is for Congress to debate and decide, not the court system.”


California’s governor, Gavin Newsom, said: “These folks had this information and lied to us, and we could have staved off some of the most significant consequences. It’s shameful. It’s sickens you to your core.”


How these cases will play out is not yet clear, but in last April, some of the jurisdictions bringing them had a win when the US Supreme Court ruled that they should remain in state courts, where they are thought to have more chance of success than in federal courts.


Kysar says fossil fuel companies are drafting an “army” of lawyers to fight every case in every jurisdiction around the world because “every one of them feels like an existential threat” to the industry.


Part 3 will explore issues with the enforcement of court orders related to successful court litigation and the impact of the narrative surrounding these cases.



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