How to sue Big Oil — Part 2

Image of painting by Rossetti of Pandora
Pandora holding the box. Painting by Dante Gabriel Rossetti 1871

This is a follow up to my last post. It’s an attempt to clarify the logic underlying it.

Global Warming has two separate and distinct parts. Part 1 is about controlling the production, distribution, and burning of fossil fuels. Part 2 is about the consequences of burning them.

Part 1 is under the control of humans as represented by legal units such as national, state, or municipal governments. These units make rules, regulations, and laws, and assign departments or agencies to administer them, all with the intention of regulating the production and use of fossil fuels.

Part 2 is totally different. As soon as fossil fuels are burned and carbon dioxide (CO2) molecules are emitted into the atmosphere, human control of the situation ceases. Those CO2 molecules are incorporated into the atmosphere where they work to enable global warming and its damaging consequences. Once C02 molecules from fossil fuels are allowed to enter the atmosphere, they are beyond human control.

Part 1 lawsuits are about how perfectly or imperfectly fossil fuels are being regulated. The litigants have opposing views about how new regulations or changes to existing ones may affect future events. 

— The Trump Administration opens public land to drilling. Citizens sue to stop that happening 

— The EPA moves to weaken the Clean Air Act. New York State sues to stop it doing that.

— The Federal Government fails to act against global warming. Kids sue to force action (Juliana v. United States).

Part 2 lawsuits are about the climate damage that has occurred and is occurring due to the release of fossil fuel CO2 into the atmosphere. The litigants have opposing views on who is at fault and who should pay the damage costs. Such lawsuits are tricky because they involve assigning blame and assessing compensation. But that is what judges are for.

— Cities sue big oil companies to recover climate damage costs.

Unlike Part 1 lawsuits, Part 2 lawsuits have absolutely nothing to do with the regulations designed to control fossil fuels, or with the government departments or agencies who apply them.

By the time a Part 2 lawsuit is launched, the damage costs to be litigated have already been paid. As noted in my previous post, the U.S. Government Accounting Office, in its report dated Oct. 24, 2017, determined that damage from Climate Change over the 10 year period ending 2o17, cost the government $350 billion in taxpayers money. The costs include funding for disaster recovery programs, flood insurance claims, repairs to defence bases, etc. The tax-hit on any city for that same 10-year period is the per capita cost multiplied by the city’s population.

What needs to be emphasized is that when cities sue Big Oil, they are doing so on behalf of their citizens. The citizens paid taxes to cover the costs of climate damage. The oil corporations paid nothing. What the lawsuits ask is that some of those costs be shifted onto the shoulders of the oil corporations. The idea that such claims are best handled by the executive and legislative branches of government, as some judges have suggested, makes no sense. The facts of such cases have nothing to do with the control and regulation of fossil fuels. What Big Oil did was lie to their clients about the dangers that flow from the use of their products. That can be proved. Climate damage became worse as a consequence of those lies and, as a result, taxpayers became poorer, oil companies became richer. The question to be settled is how much money should the oil companies pay the cities to correct that imbalance.

The image at the top of this post shows Rossetti’s interpretation of the Greek myth about Pandora. It shows Pandora’s right hand resting on the lid of the box. Has she just closed the lid? It appears so. Note the plume of smoke rising from the box. The industrial revolution was well underway when Rossetti composed the work in 1871. Was he influenced by the industrial revolution? Probably. In any case, the evils let loose from the box surely included CO2 from fossil fuels. Who should be held responsible? Pandora because she opened the box out of ignorance? Or the person who loaded the box with CO2 but failed to inform Pandora about the dangers?

Comments welcome