More Climate Lawsuits Could Spur Federal Legislation and a Just Transition

The Honolulu City Council chamber was rife with indignation and grief at a November 12, 2019, hearing, as residents urged the city council to vote to move ahead with suing oil companies to seek compensation for the growing cost of mitigating climate crisis conditions on the island. The list of defendants includes ExxonMobil, Shell and Chevron. Teenage activists, labor union reps, religious leaders, retirees, mothers-to-be, and others lined the walls of the room, ready to approach the podium for a minute each of testimony.

“We are every day inundated with climate change,” Mike Leary, who has run a demolition and auto safety inspection business in Honolulu for 35 years, told the seven Honolulu council members in attendance. Leary said he’s lost countless clients because the street near his business in the northwest industrial neighborhood of the city floods so regularly. “How would you like to wear rubber boots to come to work because your carpet is wet and mold is growing on the walls?”

“Climate change is a working people’s issue,” Ikaika Hussey, representing the hospitality workers union Unite Here Local 5, testified. “We live in an economy where there will be lifeboats and preservers for the rich. But for the working people of our island,” he continued, “we need to ensure that we’ll have a sustainable future for everyone.”

Others who testified argued that taxpayers should not be the only ones called on to pay for the kinds of projects a sustainable future will require, given the role Exxon and other Big Oil companies played in sowing confusion about the link between the burning of fossil fuels and a warming climate.

During two hours of testimony in the small but crowded chamber, only one person opposed the resolution to proceed with suing Big Oil companies. Natalie Iwasa, a former candidate for Honolulu City Council District 4, told city councilors that a lawsuit would be hypocritical given the city’s willingness to accept $20 million in federal funding for a coastal pedestrian bridge in an area likely to be inundated by sea level rise. Iwasa also pointed out how few individual lifestyle changes people in Honolulu were making — like riding a bike instead of driving.

“It’s true that we all have a role to play in reducing the effects of climate change,” said Sierra Club Hawaii Director Marti Townsend, referring to Iwasa’s testimony. “But [fossil fuel companies] have a larger role,” Townsend said. “In addition to all of the other things we need to do to transition to a just future, we need to do this.”

When, after two hours of testimony, the Honolulu City Council unanimously passed a resolution to initiate legal action against fossil fuel conglomerates and corporate entities, it became the latest of over a dozen municipalities, cities, counties and one state to sue Big Oil for climate change-related damages.

Climate Litigation Is on the Rise

According to a 2019 report by the London School of Economics, the number of climate lawsuits brought annually in the United States rose from fewer than five to over 100 between 2005 and 2015. As of December 20, 2019, 108 climate change-related suits were filed in U.S. courts. Hundreds of others remain in process or unresolved. Climate lawsuits are pending in at least 27 other countries, including Brazil, Ukraine and Uganda. “We don’t have time to unravel 40 years of misinformation, and so what’s happening right now is we’re in triage mode,” said University of Hawaii law professor Maxine Burkett.
Two types of climate lawsuits have perhaps captured the most attention: Cases like Juliana v. United States, in which vulnerable populations, like children or people with disabilities, sue the government for violating the constitutional rights to a healthy environment; and cases like those brought by the attorneys general of New York State and most recently Massachusetts, who are suing ExxonMobil on the grounds that it misled investors about the dangers of its product. There are also plenty of more traditional environmental cases where a plaintiff sues a polluter or any scale of government entity for violating the Clean Air Act, for example.

Then there are damages cases like the one the Honolulu City Council voted to pursue. These cases are grounded in public nuisance law, a branch of common law that helps clear up who is financially responsible for some kind of loss. In 2011, a case called American Electric Power Co. v. Connecticut went all the way to the Supreme Court, where it was ruled that public nuisance law does not apply to legal disputes over greenhouse gases brought to federal court. “If they’re taken to federal court, they will be dismissed,” said University of Houston environmental law professor Victor Flatt, because there, judges default to the Clean Air Act, which establishes that only the Environmental Protection Agency can bring lawsuits related to pollution. Since then, there’s been an explosion of cases claiming damages under state law, Flatt said.

“And I think cities that have already specifically incurred expenses related to climate change are particularly well-suited because they don’t have any problems with proof,” Flatt said. In coastal towns, rising sea levels alone constitute evidence. In 2018, Hurricane Lane didn’t even make landfall in Hawaii, and yet it cost Hawaii County an estimated $20 million in flooding damage.

While the majority of climate litigation is still directed towards various government entities, municipal and state officials are increasingly embracing climate litigation as responsible leadership. At the 2019 U.S. Conference of Mayors, which was held in Honolulu in late June, more than 200 mayors voted unanimously to pass a resolution asserting that cities and towns should have the right to pursue climate liability lawsuits to recover costs of current and future climate change-related damages.

“This is a concern that is broadly shared across the nation by mayors that really have to deal with where the rubber hits the road on climate change,” said Honolulu Chief Resilience Officer Josh Stanbro at a press conference. “They have to deal with the fires, they have to deal with the hurricane cleanup, they have to deal with the flooding, while at the federal level, we’re seeing a retreat from climate issues. It’s being left to municipal leaders to clean up.”

Ahead of the U.S. Conference of Mayors, New Orleans Mayor Latoya Cantrell announced the city would sue Entergy and Chevron along with other smaller companies to try and recover an estimated $133 billion in projected losses related to the oil industry’s contribution to wetland loss and related coastal storm surge. In doing so, Cantrell joined 42 similar suits brought by parishes throughout Louisiana. All of these suits were punted, or “removed” to federal court. So far, only the one filed by Plaquemines Parish — the southernmost territorial division in Louisiana, most of which is below sea level — has been “remanded” or sent back to state court. The jurisdictional ping pong is emblematic of the procedural fights all of these cases are up against.

“Most of these cases have been filed in state court because communities have felt that these are local issues, they should be decided by local courts and they should be decided by state law,” said Marco Simons, general counsel at EarthRights International. Simons says that major corporate defendants like the fossil fuel conglomerates try to push cases to be heard in federal courts because they think they have an advantage there.

Cases brought by San Francisco and Oakland as well as New York City were dismissed on those grounds in 2018. But this year, federal district judges have begun to remand these cases back to state court.

According to Richard Wiles, executive director of the Center for Climate Integrity, cases like the one brought forth in Honolulu have the greatest potential to correct the public narrative around who is to blame for the climate crisis, and to tap into funds to be able to adapt. Litigation also has the potential to spur legislation, as demonstrated by the struggles for civil rights, marriage equality, tobacco reform and most recently, opioid reform, Wiles points out.

“It’s the same thing here: You’re just not going to get it through Congress until you establish some principals in the courts,” Wiles told Truthout. “And those principals have to be directed at those who caused the problem.”

In addition to oil company litigators trying to stick the cases in federal court where they’ll be dismissed, the suits have caught plenty of pushback from petroleum industry associations. “These misguided lawsuits will do literally nothing to address climate change,” Spencer Walrath, told Fair Warning. Walrath is the research director at Energy In Depth, a project of the Independent Petroleum Association of America. “[They] are nothing more than an opportunity for politicians and activists to score political points and for trial lawyers to win big paydays if they succeed,” he said.

But Burkett, the University of Hawaii law professor, says the attorneys pursuing these cases are going out on a limb to do so, and only proceeding if communities are up for it. “People that have been harmed deserve to go to court to have the harm corrected by the entity that was the cause of that harm,” she said.

But a just transition away from fossil fuels is not just about jobs. “It’s also about making sure that communities that are so severely harmed — especially front-line communities — have the capacity to seek remedy,” Burkett said.