Why Environmentalists Want to Tell It to the Judge

• March 07 2018
• Bob Van Voris

Efforts to fight climate change are going nowhere in the U.S. Congress, and President Donald Trump has vowed to withdraw from the Paris climate agreement. So environmentalists are turning to the courts.

Efforts to fight climate change are going nowhere in the U.S. Congress, and President Donald Trump has vowed to withdraw from the Paris climate agreement. So environmentalists are turning to the courts. But they’ll have to overcome a host of legal obstacles and lawyers for oil and gas companies before the question of who’s responsible for global warming can be weighed.

1. What are environmental activists doing?

Some are suing on behalf of local governments, claiming that energy companies denied scientists’ findings on climate change despite knowing the “grave risk” posed by the use of fossil fuels. New York City has filed suit against six oil and gas producers claiming they’re the world’s largest contributors to climate change. Attorneys general in Massachusetts and New York are investigating Exxon Mobil Corp., the biggest U.S. oil company, for defrauding shareholders and consumers by covering up information on climate change. Others blame the government for failing to act more proactively. A group of 21 Oregon children and teens sued in 2015, claiming the federal government hasn’t done enough to protect the environment, violating their constitutional rights to life, liberty and property.

2. Why have they turned to the courts?

Activists and environmentally-minded lawyers are seeking new ways to use the law to slow global warming and assign responsibility for the resulting economic damages. Some suits predate the 2016 presidential election, but they’ve been given new urgency by Trump’s election and the appointment of Scott Pruitt to head the Environmental Protection Agency. Trump has shrunk the size of national monuments to allow mining, oil and gas drilling, and has proposed opening coastal waters to oil drilling. Pruitt has questioned the link between emissions and global warming, as well as whether climate change is a health risk.

3. How will environmentalists try to prove their cases?

The New York City suit is built on a claim that oil and gas companies have created both a “public nuisance ” -- an illegal threat to community welfare -- and a “private nuisance” -- an unreasonable interference with the use of someone else’s land. It’s a strategy that’s been used successfully against producers of asbestos and lead paint, but it’s never worked for something as broad as global climate change. The Oregon suit, known as the Juliana case, and similar cases are based on a claim that the health of the environment is a public trust, held by the government for the benefit of future generations.

4. What are energy companies doing about this?

Fighting fire with fire. Exxon has sued the lawyers who sued it, claiming that the suits and state investigations constitute a conspiracy to deny its right to free speech as part of the climate debate. Energy companies are taking maximum advantage of procedural moves, including moving claims out of state court and into federal court, where they believe the law is more favorable and judges more sympathetic. Broadly, companies say the solution must come from Congress, not the courts. They also argue that the lawyers suing them are seeking to demonize them unfairly in hopes of big settlements.

5. What are the chances environmentalists can win?

Unclear. They’ll have to persuade courts to apply the law in new ways. In 2011, the U.S. Supreme Court rejected a public nuisance suit against fossil-fuel burning electric plants, ruling that it was up to the EPA to regulate greenhouse gases under the federal Clean Air Act. But on March 7, the federal appeals court in San Francisco rejected a Justice Department bid to block the Oregon teenagers’ suit, allowing the case to move toward trial.

The Reference Shelf

• Bloomberg coverage of the suits can be found at Climate Changed.
• The Manufacturers’ Accountability Project is tracking environmental suits against industries.
• The New Yorker profiled the Oregon teenagers suing over climate change.
• Bloomberg QuickTakes on climate change and Trump’s efforts to revive coal power in the U.S.