Major oil companies such as ExxonMobil Corp., Shell PLC and ConocoPhillips Co. should be held liable for climate-change crises in California, including more frequent wildfires, flooding and severe weather, the state’s attorney general said in a new lawsuit.
Industry groups, however, said the lawsuit has likely more to do with politics than science or the law, centering on claims that will prove difficult to press in court. They say the alleged goals of the lawsuit are better suited for legislatures and other rule-making bodies, not the courts.
The lawsuit filed on Sept. 15 in San Francisco Superior Court seeks compensatory damages, punitive damages and the creation of a fund to finance California climate mitigation in the future – mitigation the state says will cost taxpayers huge sums going forward.
Environmental attorney Steven Siros
| Jenner & Block
“Defendants’ deceptive and tortious conduct was a substantial factor in bringing about these devastating climate-change impacts in California, including … extreme heat, more frequent and intense droughts, increasingly severe wildfires, more frequent and intense storms and associated flooding, degradation of air and water quality, damage to agriculture, sea level rise, and habitat and species loss,” the complaint states.
The lawsuit also seeks penalties from the defendants amounting to $2,500 for each violation of various sections of the California Business and Professions Code.
“With our lawsuit, California becomes the largest geographic area and the largest economy to take these giant oil companies to court,” California Attorney General Rob Bonta said in a prepared statement. “From extreme heat to drought and water shortages, the climate crisis they have caused is undeniable.”
But oil and gas professional associations have called the state lawsuit a political stunt and a waste of taxpayer money, arguing that such policy should be dealt with in Congress and by federal agencies, not through lawsuits that merely seek to squeeze companies for big payouts.
The American Petroleum Institute (API), one of the defendants in the lawsuit, said the industry’s record over the past 20 years has been to reliably deliver energy that consumers wanted while significantly cutting pollution and the industry’s environmental footprint.
“This ongoing, coordinated campaign to wage meritless, politicized 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,” the API’s general counsel, Ryan Meyers, told the Northern California Record in an email. “Climate policy is for Congress to debate and decide, not the court system.”
The Western States Petroleum Association (WSPA) also views the litigation as more of a political event than a serious lawsuit.
“That this lawsuit was set up to be the centerpiece of a political press event in New York City says a lot about what this is all really about,” Catherine Reheis-Boyd, WSPA’s president and CEO, told the Record. “Climate policy is too important to be accomplished by political stunts and meritless lawsuits.”
Attorney Steven Siros, head of environmental law practice at Jenner & Block in Chicago, said the California lawsuit is the product of an evolution of climate-change litigation over the past decade. Similar climate-change liability lawsuits have been filed in federal courts, but the U.S. Supreme Court ruled in the 2011 case of American Electric Power Co. v. Connecticut that the Clean Air Act gives the Environmental Protection Agency the power to decide how greenhouse gases should be regulated and that it was not in the federal courts’ purview to make their own rules.
“Right now, based on the current state of law at the federal level, there is no way to get these cases into federal courts at this stage,” Siros told the Record. “Everybody's suing in state court because they know they will be able to keep it in state court."
The California lawsuit alleges the energy companies’ behavior violated multiple areas of state law, from damage to natural resources and false advertising to misleading environmental marketing and unfair business practices.
“I think it's likely that not all of these claims are going to stick,” Siros said. “That’s why they did the kitchen-sink-type thing in their complaint."
Still, it’s possible that a California jury could issue a major damages award based on the state’s moves to seek financial relief for an “ongoing public nuisance” as well as punitive damages, he said.
Phil Goldberg, special counsel for the Manufacturers Accountability Project, said lawsuits that blame manufacturers for global issues such as climate-change impacts will not solve any of the associated problems.
“The best path is for the government and manufacturers to find, develop and innovate to source and use energy that is both sustainable for our quality of life and that of the planet,” Goldberg told the Record.
Global climate change needs to be addressed at national and international level and not by state judges, he said.
“The people behind this litigation have acknowledged that their goal is to use this litigation to raise the price of energy,” Goldberg said. “A lot of people can’t afford to pay for this litigation cost, and that’s why these are issues that should be decided in Congress and federal agencies, and not the courts.”