By Doug Kysar
July 28, 2017
This article appeared in Law360
Over a period of 40 years, tobacco companies in the United States faced some 300 lawsuits challenging the lethal nature of their products without ever losing a single case or surrendering any amount of compensation through settlement. Then, in the 1990s, suing on behalf of the state of Minnesota, then-Attorney General Skip Humphrey alleged a conspiracy on the part of tobacco defendants to defraud consumers about the hazards of smoking, to suppress the development of safer alternatives to their products, and to target children through unlawful and manipulative marketing practices.
Before trial, Minnesota requested some 40,000 pages of documents from the tobacco defendants. When the companies’ efforts to resist the request were denied by the presiding judge, they instead tried to bury Minnesota by producing an avalanche of 35 million pages of documents.
The plan backfired: The documents were made publicly available, became the basis of hundreds of academic articles, government reports and media exposes, and helped dramatically shift the politics of tobacco control by revealing the industry to be deceptive and callous.
Last week, the fossil fuel industry’s tobacco moment arrived. In parallel lawsuits filed against several of the largest oil, gas and coal producers in the world, three California government parties — San Mateo County, Marin County and the City of Imperial Beach — alleged a vast “campaign of disinformation” by the industry to preserve the market for products they know endanger the very ability of the planet to sustain human civilization.
According to the complaint, for decades now, these companies have enriched themselves with trillions of dollars in profits while knowingly contributing to a global environmental threat that their own internal reports describe as “severe” (1968), “dramatic” (1979), and “catastrophic ... for a substantial fraction of the earth’s population” (1981). With considerable force, the California plaintiffs argue that the industry should help pay for the massive expense and harm they now face due to sea level rise and other consequences of climate change.
Climate change lawsuits have been filed before. Most notably, in 2008 a group of Inupiat Eskimos from Kivalina, Alaska, sought compensation from major fossil fuel companies for the cost of relocating their village which had become unsafe due to loss of sea ice, increased storm surge and erosion. In addition to challenging the industry’s contributions to climate change as a public nuisance, the Kivalina lawsuit also alleged a conspiracy among defendants to distort public understanding of climate change.
The lawsuits filed last week are different than earlier efforts for three important reasons. First, unlike the Kivalina plaintiffs who had to rely on relatively sparse documentation of their claims, the California plaintiffs’ complaint is supported by a voluminous record. Much of the conduct cited in the complaint has been unearthed through investigative efforts by the Columbia School of Journalism, the Los Angeles Times, and other media and academic institutions. This evidence was not available at the time earlier climate change lawsuits were brought.
Second, the suit is being filed under California state law which — unlike the claims dismissed in the Kivalina case — has not been displaced by the application of the federal Clean Air Act to greenhouse gases. California courts have a long and successful history of grappling with complex environmental and health problems using bedrock principles of tort law. In fact, a powerful precedent for the suit will be the effort by 10 California cities and counties to utilize public nuisance doctrine against another deceitful and harmful group of defendants, the lead paint industry. That lawsuit, which is currently being appealed, resulted in a $1 billion dollar verdict against three paint manufacturers in 2014.
Third, the complaint articulates a compelling — actually, jaw-dropping — narrative. The complaint alleges that decades ago, the fossil fuel industry reached an informed, sober internal perspective that its products were contributing to a “great and urgent” (1979) global environmental threat. Indeed, one Exxon scientific report shared with top management in 1978 observed that “man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategy might become critical.”
At least initially, the industry seems to have responded to its knowledge of climate change reasonably, by investing in further science, exploring alternative energy sources, and considering the long-term viability of a fossil fuel extraction business model in light of environmental repercussions.
But then the cynical strategy of the tobacco industry took hold. Like tobacco, the fossil fuel industry embarked on a deliberate campaign to manufacture and perpetuate uncertainty regarding the harmfulness of its products. A strategy document for a communications campaign by the American Petroleum Institute bluntly identified a goal of turning climate change into a “non-issue,” noting that “victory will be achieved when ... uncertainties in climate science become part of the ‘conventional wisdom.’”
Tellingly, the industry utilized accurate climate science internally when undertaking its own infrastructure planning — for instance, by raising offshore drilling platforms to take account of projected sea level rise. But to the public and government officials the industry claimed that climate science was too uncertain to support regulatory controls on greenhouse gas emissions.
Critics will no doubt argue that courts are not the right institutions to sort out a complex global problem like climate change. In a certain sense, they are right: Courts are ill-equipped to solve climate change as a policy problem.
But the lawsuits brought by the California plaintiffs are not asking courts to solve climate change. The lawsuits merely seek compensation for climate-related expenses and injuries the plaintiffs and their residents must bear. A substantial portion of those harms are directly attributable to the wrongful conduct of the fossil fuel industry.
The moment for climate justice has arrived.
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Douglas A. Kysar is Joseph M. Field '55 professor of law at Yale University. His teaching and research areas include environmental law, torts and products liability. He has written widely about the role of courts in responding to climate change.