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

NY Governor Cuomo goes for clean power technology in a big way

 

Aerial photo of Con Edison East River power plant
14th St. East River Con Edison power plant, Manhattan, NYC (looking NW), Midtown in background. Image: Wikipedia

About 57% of New York state’s electricity is generated by power stations that burn fossil fuels. Nineteen of them — ranging in capacity from 22 to 2336 MW — are located in New York City, four in Manhattan. Emissions include carbon dioxide (CO2), sulphur dioxide, nitrogen dioxide, carbon monoxide, plus a multitude of other hazardous pollutants that damage human health. Many New Yorkers live next door to these plants. For example, the photo above shows the proximity of Stuyvesant Town to Con Edison’s 736-MW East River power plant.

NY Governor Andrew Cuomo, spurred by the need to take action on the health and climate effects of burning fossil fuels, announced on January 20 his ‘Green New Deal’ for the state. The goal of the plan is 100% clean electric power by 2040, the commitment to become state law. The plan will focus on building more land-based wind and solar plants, and on targeting the states offshore wind potential.

The following bar chart shows NY State energy consumption for 2016 (latest available). Natural gas is the primary fossil fuel used to produce the state’s electricity.

Bar chart showing NY State energy consumption

To get an idea of the magnitude of the task set by Governor Cuomo, the table below shows the clean power capacity in megawatts needed to replace all the fossil fuel amounts shown in the bar chart (Btu to MWh to MW x 0.9%):

Natural Gas + Coal  . . . . . . . . . . . . 42,000 MW
Motor Gasoline . . . . . . . . . . . . . . . . 19,000 MW
All other fossil fuels . . . . . . . . . . . .18,000 MW

The 42,000 MW of electricity from natural gas is the focus of Cuomo’s green plan. In fossil fuel terms, to provide that much power from scratch would require building 50 to 60 power plants of the size shown in the photo above. Instead, the task will require building wind and solar farms. For example, if offshore wind was the only source of clean power, at least 3,500 wind turbines rated at 12 MW each would be needed to generate the 42,000 MW of electricity. By comparison, the capacity of European offshore wind farms (operational and under construction) now stands at about 21,000 MW, with another 20,000 MW on the drawing board. The map below shows where New York’s offshore wind farms will be sited. Statoil (now called Aquinor) is considering a 2,000 MW wind farm for its leased area, the grey-shaded part of Hudson North.

Map showing offshore wind lease areas off New York
New York Bight offshore wind lease areas. Image: BOEM

Governor Cuomo’s plan does not specifically mention motor gasoline. As the transition is made from gasoline to electric cars, at least 19,000 MW in additional clean electrical generation capacity will eventually be required. My guess is that a significant chunk of that capacity will be met by home or community based solar panels. The other fossil products such as distillates (e.g. diesel fuel) and jet fuel are not even mentioned in the plan.

It’s sometimes suggested that carbon neutrality can be achieved while continuing to burn fossil fuels. We (all animals) exhale CO2 with every breath. That CO2 is captured by growing plants during photosynthesis. To stay alive, we eat the plants (and the flesh of animals that also live on plants) and so regain the carbon lost to the atmosphere while breathing. That is our basic carbon-neutral economy. When we began to release CO2 by burning fossil fuels, that basic economy was thrown out of kilter. Result: the greenhouse effect and global warming. The only way to re-create a carbon neutral economy is to stop burning fossil fuels. Governor Cuomo is on the right track. He summarizes his plan in the following YouTube video (1 min 42 sec).

 

 

The light at the end of the tunnel

My last post titled, ‘Help! The Hudson River Rail Tunnel is falling to bits’, elicited this question:

Is the tunnel as straight as the map suggests?

Map showing route of Hudson River Rail Tunnel from North Bergen, NJ to Penn Station, NYC
Map showing route of Hudson River Rail Tunnel from North Bergen, NJ to Penn Station, NYC. Image from Draft Environmental Statement, June 30, 2017; Hudson Tunnel Project.

The answer is yes, it is in reality as straight as a die, at least in plan view. tunneling is a costly business; the least expensive way to dig a tunnel is to keep it absolutely straight. The following YouTube video created by Konstantin Gorakine titled, ‘Tunnel ride under Hudson River to Penn Station, NYC’, will convince you. It convinced me.

You’re a visitor and you want to experience ‘authentic’ New York City life. To the millions of people who live and/or work in the city, there’s nothing more ‘real’ than the daily commute. About one hundred thousand commuters pour into the city through the Hudson River Rail Tunnel every weekday. And that’s just one of the entry points. Get a feel for what it’s like; take the same train ride. But there’s no need to punish yourself; avoid the rush hours.

The NJ Transit train ride from Penn Station, NYC to Penn Station, Newark, NY, makes for an enjoyable excursion — about 20 minutes travel time, each way. If you leave at about 10:30 in the morning, you can be back by noon. Navigating Penn Station is an authentic New York experience in itself.

Map showing location of Penn Sta., NYC in relation to Penn Sta., Newark andNorth Bergen Tunnel portal
Map showing locations of Penn Sta.,NYC, North Bergen Tunnel portal, and Penn Sta., Newark, NJ