In a potentially historic move, the coastal Californian counties of Marin and San Mateo, together with the City of Imperial Beach, have each filed a lawsuit against 20 of the world鈥檚 largest fossil fuel producers.
allege that by extracting, marketing and distributing oil, coal and gas, the companies have engaged in conduct that has and will continue to cause rising sea levels. The claims say the resulting floods interfere with public and private property and affect the rights of coastal residents in the US state to health, safety, peace, comfort and convenience.
This is part of a growing international trend of climate change litigation: lawsuits that seek to hold companies and governments accountable for the increasing loss and damage attributable to anthropogenic climate change.
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Although brought in the US during the George W. Bush era had mixed success, more recent international examples have seen courts willing to take a position on the difficult issue of climate change.
In 2015, a Dutch court to tighten its target to reduce greenhouse gas emissions in order to mitigate future climate change and consequent harm to the nation鈥檚 people and environment. Litigation is also being pursued against governments using several different legal approaches in , and .
On the climate front line
So why California and why now? The state is predicted to result from increasing mean global temperatures. Marin county says it is already experiencing severe flooding during the highest spring tides and storm surges, with the value of properties at risk .
The lawsuits seek damages from a , including Chevron, ExxonMobil, Shell, BP, Statoil, Repsol, Arch Coal, Rio Tinto and Occidental Petroleum. Those damages would contribute to the costs of adapting to coastal erosion and flooding, including upgrading infrastructure.
Additionally, the vacuum in climate policy created by the Trump administration might actually make state courts more willing to take an active role. Ironically, the withdrawal of the US from the Paris Agreement, and moves to reverse the Obama administration鈥檚 Clean Power Plan could prompt state courts to find that the federal system has vacated the field, leaving room for them to step in.
Brought under common law torts, a legal proceeding that allows claims for damage caused by the actions of another, the California action differs from earlier claims in one important way. The lawsuits allege the companies had prior knowledge about the risks of fossil fuels to the environment, and that they engaged in a sustained campaign of political lobbying to avoid regulation and to misrepresent, omit and conceal the dangers of their products from the public.
What hope of success? One significant challenge will be establishing causation, which usually means proving that 鈥渂ut for鈥� the conduct of the defendants, the harm wouldn鈥檛 have occurred. In this case, evidence is cited that the companies being sued were responsible for the extraction and sale of fuels that released 20 per cent of the world鈥檚 greenhouse gas emissions from 1965 to 2015, in a period known the .
Whatever the decision in California, it is clear that climate change litigation is increasing. Courts are more willing to adjudicate in relation to these difficult questions, as they did in the case of the tobacco industry in earlier decades.
It is useful to recall that even though individual lawsuits back then weren鈥檛 always successful, they did shift public opinion and drove the cigarette industry towards a political and financial settlement with government.
