New Tactic in Climate Change Litigation Could Cost Energy Companies Billions. Or Not.

There’s a lovely neighborhood in Marin County, California where we recently thought about buying a house. The lots in Bel Marin Keys aren’t big, but they back to lagoons connected to the San Pablo Bay. Just about everyone has a dock in their backyard.

And then we remembered. In a few decades, the whole place will probably be flooded, covered by a foot or so of water, thanks to global warming.

This week, Marin and two other coastal communities in California hit back, suing 37 giant oil, gas and coal companies in a first-of-its-kind bid to win compensation for costs related to rising sea levels.

Defendants include ExxonMobil, Chevron, BP, Shell, ConocoPhillips and Arch Coal—companies that the plaintiffs assert are together responsible for about 20 percent of global greenhouse gas emissions.

“This type of state common law climate litigation has been a long time coming, and these cases may well represent the first of a slew of similar cases nationwide,” Michael Burger, executive director of the Sabin Center for Climate Change Law, wrote in Columbia Law School’s climate law blog. “Importantly, these cases have been filed at a particular moment in time, when scientific consensus on and understanding of climate change is at an all-time high but the federal government’s commitment to addressing the problem is at an all-time low.”

The trio of nearly identical state court suits by Marin and San Mateo counties and the city of Imperial Beach are the latest attempts to address climate change through the courts. In Oregon, 21 young Americans are edging toward trial in a suit against the federal government alleging that their constitutional rights were violated by policies promoting the production of fossil fuels. And the attorneys general of Massachusetts and New York have launched a fraud investigation against ExxonMobil, looking at whether the company misled shareholders and the public about climate change.

The California suits are trying another approach.

The governments are represented by environmental plaintiffs firm Sher Edling, which according to Marin County deputy counsel Brian Case is handling the case on contingency. “Taxpayers are not being asked to bear the risks of this lawsuit,” he said.

It does seem like a bit of a long shot.

Optimistically, name partner Vic Sher in an interview likens the suits to Big Tobacco and MTBE litigation.

There are certainly some similarities. Like the tobacco companies, the oil and gas defendants allegedly knew about the hazards associated with their products, acted to conceal the knowledge and have profited handsomely for years.

The 100-page complaint filed on July 17 alleges eight familiar causes of action including public nuisance, failure to disclose, design defect and negligence.

“Defendants have known for nearly 50 years that greenhouse gas pollution from their fossil fuel products has a significant impact on the Earth’s climate and sea levels,” the complaint states. “Defendants concealed the dangers, sought to undermine public support for greenhouse gas regulation, and engaged in massive campaigns to promote the ever-increasing use of their products at ever greater volumes. Thus, each defendant’s conduct has contributed substantially to the buildup of CO2 in the environment that drives sea level rise.”

The complaint seeks compensatory and punitive damages, disgorgement of profits and legal fees. It doesn’t specify a dollar amount, but in a press release the firm notes that in Marin County, more than 12,000 homes, businesses and institutions could be at risk from tides and surge flooding by the end of the century, with the vulnerable properties assessed at nearly $16 billion.

In San Mateo, it’s even more: $39 billion of assessed property is allegedly threatened by rising sea levels.

But here’s the thing: for the most part, none of this has happened yet. The houses in Bel Marin Keys still have dry backyards; the lagoons have not overtaken their banks. Yes, Marin County has spent money on a “Sea Level Vulnerability Assessment,” but is that enough to show injury-in-fact?

And while there was some roadway flooding this winter, Marin County also got the most rain in 122 years. Is that the fault of global warming? How do you prove causation?

Suffice to say, these won’t be easy cases. Still, Sher has an impressive track record.

In 2009, he was New York City’s lead trial counsel in City of New York v. ExxonMobil, a federal jury trial over MTBE contamination in Queens that resulted in a $104.7 million verdict for his client. The city alleged that the gasoline additive contaminated its groundwater supply.

In 2013, the U.S. Court of Appeals for the Second Circuit upheld the verdict, and offered a precedent that could be prove useful today.

Exxon on appeal protested that it was being forced to pay upfront “for predicted future injuries that depend on a chain of speculative possibilities.” Paul Clement, now a partner at Kirkland & Ellis, wrote in a (denied) cert petition on Exxon’s behalf: “If cash-strapped municipalities can obtain a nine-digit award for injuries not yet suffered and that are not imminent, federal courts will be inundated with premature claims.”

Contact Jenna Greene at [email protected]. On Twitter @jgreenejenna.