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. 

Examples:
— 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.

Example:
— 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?

How to sue Big Oil for money and win . . . maybe

Photo of judges hammer and money
Image: from NY Post

Last year (Jan 2018) New York City sued five major Oil & Gas companies — ExxonMobil, BP, SheIl, Chevron, and Conoco Phillips — for contributing to global warming and the resulting physical damage to city property. It asked the court to hold the oil companies liable for the damage they’ve caused, and award the city monitory compensation. But on July 20, 2018, the court dismissed the lawsuit in favour of the oil companies.

In dismissing the lawsuit, U.S. District Court Judge John F. Keenan, ruled that the city’s claims come under federal law involving greenhouse gas emissions that cross state lines, thus putting them under the jurisdiction of the Environmental Protection Agency (EPA). Problems associated with climate change, the judge said, should be tackled by Congress and the executive branch. In its brief to the Second Circuit Court of Appeals November 12, 2018, the city claims that Judge Keenan misunderstood the lawsuit. The appeal argues that the city did not ask the court to regulate emissions but, rather, to award the city damages on the basis of Public Nuisance, Private Nuisance, and Trespass, which, to a non lawyer, sounds pretty mild.

If Judge Keenan misunderstood the city’s lawsuit it’s because the city framed its 67 page brief around global warming as an international threat instead of what was intended, a limited and local demand for compensation. The titles of sections IV thru VIII in the brief give the flavour of the thing:

IV. Climate Change Impacts on New York City
V. Fossil Fuels Are the Primary Cause of Climate Change
VI. Defendants Have Produced Massive Quantities of Fossil Fuels—and Have Continued to Do So Even as Climate Change Has Become Gravely Dangerous
VII. Defendants Had Full Knowledge that Fossil Fuels Would Cause Catastrophic Harm
VIII. Despite Their Early Knowledge that Climate Change Posed Grave Threats, Defendants Promoted Fossil Fuels for Pervasive Use, While Denying or Downplaying These Threats

Within the brief, ‘greenhouse gas’ is mentioned 29 times, ‘emissions’ 46 times, ‘global warming’ 48 times, ‘climate change’ 100 times. On the other hand, the word ‘damages’ appears in the brief only 7 times. The impression given is that the city is afraid that the judge might not understand the situation unless provided with multiple reminders that global warming exists and that it’s a serious problem.

The fact is, the judge understands the issue very well. New York City framed its complaint in terms of global warming, an international problem that requires an international solution. The judge ruled accordingly. Fossil fuel companies are happy to defend themselves at the national or international level. They know how slow and ineffective national efforts to limit global warming are. They know how to influence those efforts so as to slow them down to a crawl. They even go so far as to promote placing taxes on CO2 emissions, knowing that that distances the production of fossil fuels from the possibility of direct control. It’s a tactic that also gets others to pay what  the oil companies should be paying.

If New York City’s lawsuit fails on appeal, it will show that the Nuisance and Trespass laws are not sufficient. What then? How can any city structure it’s climate lawsuits in such a way that the trans-boundary issue is sidelined?

Here’s my contribution to solving the puzzle:

1. The science linking fossil fuels to global warming , climate change, increasing damage from storms, drought, sea level rise, etc., is settled. Global Warming is happening now. The judges know it. The Oil & Gas companies do not deny it. They most certainly do not want to wind up in court fighting the science. They would lose. Instead, when sued for climate damages, oil companies fight back by attacking the lawsuit’s legal right to stand. There’s no need to stress the existence and effects of global warming when suing oil companies.

2. Even though oil companies have known for decades about the dangerous effects that result from the use of their products, they deliberately kept the knowledge to themselves.

3. New Yorkers generate pollution while engaged in manufacturing, transportation, electricity generation, day to day living, etc. The energy used in these activities includes fuels purchased from the oil companies. New York takes responsibility for the pollution it generates and is working to abate it.

4. As New Yorkers use fossil fuels purchased from the oil companies, carbon dioxide (CO2) molecules are released into the atmosphere. All of those CO2 molecules released by New York to date, remain in the atmosphere and will remain there indefinitely, doing their part in causing the atmosphere to heat up. Once in the atmosphere, those molecules that originated in New York cannot be controlled or regulated by any agency. 

5. The CO2 molecules released by New York from the fossil fuels supplied by the oil companies, add to the burden of CO2 molecules that have built up in the atmosphere over time from other sources. It follows that the atmospheric heating and consequent damage has increased by some measure due to New York’s use of those fossil fuels. To put it another way, if New York had not used any of those fossil fuels, the amount of damage inflicted on New York would be less by some measure (see item 7).

6. The oil companies learned in the 1980’s or earlier about the dangers posed by their products.  Had they behaved honestly and, at that time, informed New Yorkers about the dangers, it’s reasonable to assume that the city would have acted earlier to reduce its dependence on fossil fuels by at least 50% of what it is today. The oil companies should pay the costs flowing from that failure to tell the truth.

7. According to the U.S. Government Accounting Office (report dated Oct. 24, 2017), damage from Climate Change has cost U.S. taxpayers $350 billion over the past decade (2007 to 2017). When adjusted for population size, New Yorkers’ share of that cost was 2.6% or $9.1 billion. 

Considering all the above, how much money should the oil companies pay New York in damage compensation?

For the period 2007 to 2017 (see item 7), 50% of $9.1 billion = $4.55  billion in the form of a lump sum payment.

Since climate damage is ongoing, annual costs following 2017 will be one tenth of $9.1 billion = $0.91 billion per year (see item 7). Oil companies should therefor pay 50% of 0.91 = $0.455 billion per year starting in 2018. For how many years should the oil companies pay that annual amount. Idefinitely or until they go bust.

Photo of Verrazano bridge taken Oct 2012 during Hurricane Sandy
Verrazano bridge from Brooklyn waterfront, NYC, during Hurricane Sandy Oct. 29, 2012. Image credit: Carlos Ayala

Death by Plastic

Cuvier’s Beaked Whales (Ziphius cavirostris) are known for their extreme diving abilities. Researchers using satellite-linked tags to measure the diving behavior of the species off the Southern California coast have recorded one dive to 9,816 ft (2992 m) in depth, and another lasting 137.5 minutes, “both new mammalian dive records.” The work, carried out by Gregory Scharr and colleagues of the Cascadia Research Collective, was published March 26, 2014 in the open access journal, PLOS ONE.

Phot of Cuvier’s Beaked Whale
Cuvier’s Beaked Whale. Image: Cetacean Research & Rescue Unit, Banff, Scotland.

Because of the animal’s preference for deep water, typically far from shore, the living habits of this marvellous creature are poorly understood. Most of the collected knowledge about the species comes from the study of dead specimens. A week ago (March 16), marine researchers in the Philippians learned that a young Cuvier’s Beaked Whale could hold 88 lbs (40 kg) of plastic trash in its stomach before dying of “gastric shock”.

According to an article in the National Geographic, the young 15ft long, 1,100 pound whale was still alive when it washed up on the shore of the Davao Gulf. The people who found it said it looked emaciated and was vomiting blood before it died. The magazine quotes Darrell Blatchley, the marine biologist who performed an autopsy on the body: “Plastic was just bursting out its stomach”. Blatchley describes the contents as being like two densely packed basketballs, but hard as a baseball, some of it calcified from being in the stomach for so long. The trash, 8% of the animal’s total weight, included plastic shopping bags of various sizes, rice sacks, banana bags, and tangles of nylon rope. According to the National Geographic piece, the animal’s “stomach acid, unable to break down the plastic waste, had worn holes through its stomach lining instead.”

Writing about how much plastic trash can fit inside the belly of a whale has reminded me of the email I sent last December to James Quincey, CEO of the Coca-Cola Co. concerning his talk on ‘sustainability’ published on YouTube, August 30, 2018 – see below. The Coca-Cola Company reportedly generates — world wide — about 3 million tons of plastic packaging annually, all of it destined to pollute land, sea, or air, in one form or another. What concerned me about Mr. Quincey’s comments on plastic, was that, rather than talk about alternatives, he went on about how improved ‘recycling’ of plastic waste could ultimately fix the problem of plastic waste pollution.

My email to Mr. Quincey’s was intended to remind him that recycling plastic waste is not a ‘sustainable’ solution to the pollution problem. The email listed the following three reasons why it isn’t:

First, the collection of discarded plastic is driven by local demands for the cleanup of unsightly trash, and it depends on the availability of municipal taxes and/or government subsidies to pay for the work. There are many places, including whole countries, that cannot afford decent garbage disposal, let alone the facilities needed to extract plastic from the stuff.
Second, even in places where the collection of trash is good, there is no profit motive to drive plastic recycling. The cheapest way to make plastic is to use fossil fuels – oil, gas, coal – as the raw material. It’s far more expensive to extract used plastic from garbage and then reprocess it.
Third, even if increased levels of plastic recycling could be achieved, the amount of plastic in the environment would continue to rise. That’s because recycled plastics remain in the environment as potential pollutants. For example, lawn chairs made from recycled plastic bottles eventually return to the trash pile. Recycling merely delays the pollution caused by the recycled stream.

Promoting the idea of recycling to reduce plastic pollution is a useful PR position for a corporation like Coca-Cola to adopt— in the short term. But what, I asked Mr. Quincey, is his company’s actual, sustainable, solution for the long term? I’m expecting a positive reply; something like: plastic is an abomination, a scourge, there’s no choice but to phase it out, we must use glass instead, the quicker we act the better.

I haven’t received any reply from Mr. Quincey yet, but I’ll update this post when I do.

While the whale that died from gastric shock will disintegrate and return harmlessly to the earth, the trash removed from its stomach continues to exist. Conceivably the same trash could some day find its way back into the ocean to once again kill more creatures — assuming there are any creatures left to kill. That’s the problem with plastics. Like the fossil fuels from which they are derived, once let loose into the environment, the damage they cause lasts indefinitely and becomes virtually impossible to control. Perhaps next time Mr. Quincey and his fellow Coca-Cola board members meet to discuss corporate business, they’ll consider more carefully the implications of their product-packaging decisions. To use a business jargon term, the company needs to get out ahead of the curve.

Photo of Coca-Cola Co. Board of Directors
Coca-Cola Board of Directors. James Quincey 7th From left. Image from Coca-Cola Co. website

 

Juliana v. United States: the battle heats up

My earlier post dated January 19th, outlined ‘Juliana v. United States’,  the youth climate lawsuit. The suit claims that the federal government, because of its ongoing failure to limit fossil fuel extraction and use, has violated the young people’s constitutional rights to life, liberty, and property, and failed to protect the country’s public-trust resources. The case is currently held up in the Ninth Circuit Court of Appeals following an appeal by the government, the latest of many attempts by the Trump administration to derail the action.

Photo: James R. Browning Courthouse, San Francisco CA
James R. Browning Courthouse, Ninth Circuit Court of Appeals, San Francisco CA. Image: Google

On February 4th., the court agreed to begin hearings on the government’s appeal next June, in Portland, Oregon. Also on February 4th., Donald Trump nominated David Bernhardt to head the U.S. Department of the Interior. Bernhardt had become acting head following the departure of scandal-plagued Ryan Zinke.

Photo of David Bernhardt
David Bernhardt. Photo credit: D. Zalubowski/AP

It’s expected that Mr. Bernhardt, a former fossil fuel industry lobbyist, will continue to work on advancing  the President’s “energy dominance” agenda for the country. According to the New York Times, this has already involved “some of the largest rollbacks of public-land protections in the nation’s history . . .  opening millions of acres of public land and water to oil, gas and coal companies.” The Guardian of Dec. 16, 2018 quotes Natural Resources Defense Council’s Bobby McEnaney: “It’s not so much who [Mr. Bernhardt] has helped, it’s who hasn’t he helped in industry so far. The notion that he could extricate himself from benefiting his former clients is impossible.”

Reduced to its essential meaning, the young people’s lawsuit is accusing the Trump administration of ecocide — the destruction of the natural world, including all the humans in it. Underlying that accusation is the fact that, while the plaintiffs are young, the people causing the destruction are old — like Trump. It follows that while the old people have only a few years left to live, the young people have their whole lives ahead of them, provided the old people can be prevented from killing them prematurely.

Despite the Juliana lawsuit, and perhaps in spiteful reaction to it, President Trump, with the help of Mr. Bernhardt and many others like him, has actively persisted in his objective, which is to open up every square foot of the country’s federal lands to fossil fuel extraction. His current push to open the Atlantic and Pacific Outer Continental Shelves to offshore drilling, has caused even some Republican legislators to become queasy.

Map of USA showing federal lands
U.S. federal lands. Map produced by Bureau of Land Management, Washington DC

On February 7th, reacting to the Trump administration’s nose-thumbing behaviour, the Juliana plaintiffs filed an “urgent motion” in the Ninth Circuit Court, asking it to grant an injunction preventing the government (pending the resolution of its appeal) from: mining coal on federal public lands; engaging in offshore oil and gas exploration on the Outer Continental Shelf; developing new fossil fuel infrastructure such as pipelines and fossil fuel export facilities.

Accompanying and following the motion were supporting briefs from more than 30 diverse groups and individuals, including one from Zero Hour (zerohour.org) on behalf of 32,340 children who responded to an online petition.

The government filed its opposition to the plaintiffs motion on February 19th.

 

Is the federal government deliberately trampling on your fifth amendment rights? The young plaintiffs in Juliana v. United States say yes

Photo of Kelsey Juliana, plaintiff
Kelsey Juliana, plaintiff in Juliana v. United States. Image from Ourchildrenstrust.org Photo: Robin Loznak

Kelsey Juliana is the named plaintiff in Juliana v. United States, which is currently on hold in the Ninth Circuit Court of Appeals. In 2015, Kelsey and twenty other young people (aged 7 to 18 at the time), sued the Federal Government in U.S. District Court, Oregon, for causing life-damaging Climate Change impacts. Listed in the lawsuit are the specific complaints made by each of the young people.

Here’s a summary of Kelsey’s complaint:

Kelsey was born and raised in Oregon. She depends on the resources of the state for her survival and wellbeing. For sustenance she drinks Oregon’s fresh waters and eats the food it produces, including: seafood from Oregon’s marine and estuarine waters; food grown by farmers in the Willamette Valley; and food grown by her family in their garden. For recreation and vacationing she enjoys outdoor activities such as visiting the beaches and tide pools along Oregon’s coast; snowshoeing, cross-country skiing, and snow camping in winter; hiking, canoeing, and backpacking in warmer weather.

The suit alleges that the affects of Climate Change — drought, warmer winters, declining snowpack, increasing summer temperatures, algal blooms on lakes, intense wildfires — are already harming Kelsey’s drinking water, her food sources, and all the places she enjoys visiting. The suit also contends that in the coming decades, Kelsey will suffer even greater harm from the impacts of ocean acidification and rising sea levels, all because of the federal government’s actions and inactions.

Kelsey’s complaint goes on to say that the federal government has “caused psychological and emotional harm to Kelsey as a result of her fear of a changing climate, her knowledge of the impacts that will occur in her lifetime, and her knowledge that [the government is] continuing to cause harms that threaten her life and wellbeing. As a result of the acts and omissions of [the federal government], Kelsey believes that she will not be able to continue to do all of the things described in this Complaint for her life, health, and enjoyment, nor will she one day be able to share those experiences with her children.”

Photo of Oregon coastal mountains and beach
Oregon Coast. Image from Unsplash.com Photo by Vasiliki Volkova

People blame the government for all sorts of things. What’s so special about Kelsey’s complaint? Nothing, except for the fact that the lawsuit links it directly to the U.S. Constitution.

The Due Process Clause of the Fifth Amendment bars the federal government from depriving a person of ‘life, liberty, or property’ without ‘due process of law’. Kelsey and her co-plaintiffs are claiming that the federal government is violating their due process rights by knowingly causing the climate to change to such an extent that they are being deprived of their way of life and the things that make it livable. Items I & II of the suit’s statement of facts, spell it out:

I. THE FEDERAL GOVERNMENT HAS KNOWN FOR DECADES THAT CARBON DIOXIDE POLLUTION WAS CAUSING CATASTROPHIC CLIMATE CHANGE AND THAT MASSIVE EMISSION REDUCTIONS AND A NATION-WIDE TRANSITION AWAY FROM FOSSIL FUELS WAS NEEDED TO PROTECT PLAINTIFFS’ CONSTITUTIONAL RIGHTS.
II. IN SPITE OF KNOWING OF THE SEVERE DANGERS POSED BY CARBON POLLUTION, DEFENDANTS CREATED AND ENHANCED THE DANGERS THROUGH FOSSIL FUEL EXTRACTION, PRODUCTION, CONSUMPTION, TRANSPORTATION, AND EXPORTATION.

Photo of the Navajo Generating Station , Arizona
Coal burning power plant, the Navajo Station, Arizona. Image from nbcnews.com

The federal government does not want to see this lawsuit go to trial. Government lawyers have, several times, petitioned the Oregon District Court, the Ninth Circuit Court, and the Supreme Court, trying to put a stop to it. The government hasn’t yet denied the claim that its climate actions have caused harm to the young plaintiffs. Rather, it has attempted to derail the suit by claiming that they have no right to bring their complaints to court in the first place.

The Ninth Circuit Court is expected to rule soon on the hold it placed on the suit last December. If the ruling is in the plaintiffs favor, the Oregon District Court will set a trial date.