Yes, there is a case for suing oil companies for climate change

The Brooklyn Battery Tunnel, flooded in 2012 by Hurricane Sandy. Image: Getty.

Thanks to climate change, sea levels are rising and storm surges are becoming more costly and frequent. Since most American state and local governments are cash-strapped, cities and counties fear that they won’t be able to afford all the construction it will take to protect their people and property.

So some communities in California and Washington state, as well as New York City, are suing oil companies in a bid to force them to foot the bill. Recently, Rhode Island became the first state to take this step, when it sued 21 oil and gas companies “for knowingly contributing to climate change and the catastrophic consequences to the State and its residents, economy, eco-system, and infrastructure”.

Does it make sense to hold the industries responsible for global warming liable for the price – in dollars and cents – that everyone will have to pay to adapt to a changed climate?

As a scholar of environmental law, I believe climate liability cases like these have merit.

A public nuisance

The local governments asking the courts to intervene allege that higher sea levels brought about by climate change are a public nuisance. That may sound odd at first, but I believe that is fair to say. It is also the legal basis on which similar liability lawsuits have been filed before.

The sea level along California’s coasts may have risen about 8 inches in the past century. Scientists project that they may rise by as much as 55 inches by the end of this century.

That worst-case scenario would put nearly half a million people at risk of flooding by 2100, and threaten $100bn in property and infrastructure, including roadways, buildings, hazardous waste sites, power plants, parks and tourist destinations.

Superstorm Sandy caused over $60bn in damage along the New Jersey and New York coasts. Several researchers have concluded that sea level rise and a warming ocean played a major role in making that storm so catastrophic.

The Trump administration has released a national climate change assessment, confirming that extreme weather events – storms on steroids – are becoming more frequent and intense.

If anything, characterising these catastrophes as a public nuisance is an understatement.


A question about jurisdiction

Oakland and San Francisco both sued five of the world’s largest oil companies in state court, asserting claims based on California’s own nuisance law. They are seeking billions of dollars for an abatement fund.

But Chevron, one of the five oil majors being sued, objected and sought to transfer the San Francisco and Oakland lawsuit to a federal district court, where Judge William Alsup recently dismissed the case.

Still, it wasn’t a clear win for oil companies.

Alsup accepted the scientific consensus that the defendants’ line of business is driving climate change and therefore poses a clear and present danger to coastal communities and others. But in his ruling, he also questioned whether it’s “fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded”.

And while the judge also acknowledged that federal courts have the authority “to fashion common law remedies for claims based on global warming”, he opted to “stay his hand in favor of solutions by the legislative and executive branches”. In other words, he said it’s up to Congress and the White House to figure out whether oil companies ought to pay to, say, move San Francisco’s airport to higher ground.

Even if prospects for federal action on this front are next to nil for the foreseeable future, given the Trump administration’s warm embrace of oil, gas and coal, this is no legal dead end. I believe that Oakland and San Francisco will surely file an appeal to the 9th Circuit, which could rule differently.

Even more importantly, there is another case pending that is taking a different course. The counties of Marin and San Mateo and the City of Imperial Beach, California, are also suing oil companies with similar climate liability claims. Judge Vince Chhabria sees things differently than Alsup and ruled that state law, not federal law, should prevail.

He has ordered that case back to state court, a move that Chevron, BP, ExxonMobil and the other oil company defendants are trying to prevent.

In addition to coastal communities concerned about rising sea levels, several Colorado counties filed their own climate liability cases in April 2018. Those lawsuits allege that oil companies should be held responsible for the higher temperatures now reducing the state’s snowpack. Getting less snow is jeopardising Colorado’s agriculture, water supply and ski industry.

Several legal precedents

I maintain that these cases do belong in state court because there are many relevant legal precedents.

U.S. courts have repeatedly held manufacturers liable for the damage their products wreak, especially when those companies knew full well that their products, used as intended, would cause that harm.

The biggest precedent is the tobacco industry’s 1998 settlement with the states, which called for companies to pay out $246bn over the next 25 years.

In addition, there have been many judgments against oil companies and other corporations responsible for manufacturing a potentially cancer-causing chemical called MTBE that used to be a common gasoline additive and has contaminated public water supplies.

And a panel of California judges ordered paint companies to pay more than $1bn to help get lead out of housing that remains contaminated decades after the government banned lead-laced paint. The companies are vowing to take the case to the Supreme Court if they can.

Currently, another new kind of liability lawsuit is emerging against opioid manufacturers. Ohio and at least six other states are seeking damages to help cover the expense of dealing with widespread addiction from the allegedly irresponsible marketing of prescription painkillers – which it says the companies should have known were being abused.

Exxon knew

As for the oil industry, it has evidently known for 60 years or longer that burning fossil fuels would eventually overheat the planet, with monumental consequences.

Rather than alert the public and engage in good-faith discussions to address the problem, oil majors like Exxon sought to mislead and deny what they knew about the risks of fossil fuels. Furthermore, the fossil fuel industries have sought to block any meaningful federal climate response by donating vast sums to the political campaigns of candidates who promised to oppose the requisite policies.

In a perfect world, the nation’s elected leaders at all levels of government would be hard at work passing laws and establishing programs to confront the existential threat of climate change and to help communities prepare for the unavoidable impacts that are already baked into the system.

The ConversationAlas, that is not the case. The courts are the last line of defense in this epic struggle to deal with the effects of climate change – including the astronomically expensive costs of moving housing, businesses, schools and other structures out of harm’s way.

Patrick Parenteau, Professor of Law, Vermont Law School.

This article was originally published on The Conversation. Read the original article.

 
 
 
 

How the rise of anti-crime politics caused lasting harm to Black Americans

"I see an awareness that has developed in the Black community in the last 10 years or so about how deeply racist the criminal justice system has become," James Forman Jr. says. (David McNew/Getty Images)

The police killing of George Floyd, and the protest movement that emerged from it, has reinvigorated a national conversation around reinventing criminal justice policy in the United States.

At the same time, reports that violent crime is rising in many US cities have resurrected talk of the much-disputed “Ferguson effect,” a theory put forward by law enforcement professionals, and some researchers, who argued that police slowdowns in the wake of the first wave of Black Lives Matter protests resulted in elevated rates of violent crime. President Donald Trump is trying to weaponise this narrative, paired with images of federal officers clashing with protesters in the streets of Portland, to wage a 1968-style backlash election campaign.

“People who want to mobilise a lock-them-up style of either policing or prosecution have tried to weaponise those short-term increases,” says James Forman Jr., professor of law at Yale Law School. “Criminologists will say you have to be very, very cautious about short-term movement [in crime statistics]. We don't know whether or not what we're seeing right now [with violent crime increasing] is going to sustain itself. But the fact is, it's here and people are talking about it.”

In 2018, Forman won the Pulitzer Prize in nonfiction for his book Locking Up Our Own: Crime and Punishment in Black America. Drawing on his experience as a public defender in Washington, DC, he traced the emergence of anti-crime politics in late 20th century Black communities. Forman showed how newly empowered Black politicians fought for policies they believed would protect and uplift Black Americans, but inadvertently contributed to mass incarceration. 


CityMetric recently caught up with Forman to discuss crime trends, where he sees reason for hope in this moment and how the Black political class’s attitude toward crime and punishment has shifted since the latter part of the 20th century. 

This interview has been edited and condensed. 

There is talk right now about a resurgence of crime and violence in American cities. We saw similar, more localised concerns after the initial 2015 Black Lives Matter protests in Ferguson and Baltimore. Do you fear this could reinvigorate the kind of politics you describe in your book among segments of the Black community and political class?

I fear that it could be reinvigorated nationally and also in the Black political class. Look at the political conversations that are happening in Atlanta right now, for example, a city that also has seen a short-term uptick in crime as it is a site of a lot of protests about George Floyd and Breonna Taylor on the national level, as well as Rayshard Brooks and Ahmaud Arbery more locally in Georgia.

I think that you can already see in some of the language of the local elected officials this idea that we have to be very careful about pulling back. [They are saying] “while the protesters may make some valid points, we can't risk returning to the ‘80s and ‘90s.” Those decades really traumatised the United States, and particularly traumatised Black communities. There's a deep fear about returning to the levels of the violence that we saw in the crack years.

You write a lot about class divides among Black Americans, where middle income and elite Black people don't suffer as much from extremely punitive policies. They also have closer ties to the politicians who are creating these policies. There are very specific groups of people, even in marginalised communities, whose voices are heard.  As a result of these dynamics, you write about Black politicians fighting for things like mandatory minimum prison sentences or against decriminalising marijuana. Is there still that disconnect between those who suffer the most from criminal justice policies and those who are actually heard in political discourse?  

Let me just say a caveat, that when we talk about class divisions in the Black community it's important to hold two truths in our head at the same time. Bruce Western and others have shown the way in which class, educational status, income can dramatically reduce the likelihood of being hardest hit by the criminal system – namely incarcerated. Middle class and upper middle class Black people get some measure of protection. It's also true at the same time that Black people of all classes are worse off relative to their class counterparts in the white community. 

One area where class is least protective is policing and police stops. The police do not know how many degrees you have. They don't know how much money you have in your bank account. I want to be very clear that in making this point about class, I'm not making the argument that race or racism don't matter in this context. 

In terms of how it plays out now, I see an awareness that has developed in the Black community in the last 10 years or so about how deeply racist the criminal justice system has become. Twenty or 30 years ago they had a consciousness, but there's levels of understanding. Many of the people I write about in the book wanted to promote the interests of the Black community. They weren't motivated by indifference or callousness. When presented with mounting evidence of how awful this system has been in Black lives, they're reconsidering and recalibrating. 

Lots of former elected officials have said to me some version of “I didn't know at the time and I appreciate that you showed us in our full complexity. I appreciate that you showed the pressures we were under. If I had known then what I know now, maybe I would have been less quick to go along with some of these harsh measures.” 

The second thing that has affected the Black political class has been the emerging movements, led by Black people in particular and led by young people. They not only educated leaders, but pressured them and made them understand that there is a political cost. If you're not moved by the moral argument, then you'll be moved by the political argument. You'll be moved by the people protesting outside the office of District Attorney Jackie Lacey in Los Angeles, for example, where Black Lives Matter LA has held, I believe, a year of consecutive protests against a Black district attorney who has had really some of the worst practices.

From what I can tell, she's been pressured by the movement to change some of her positions on important issues like prosecution of low-level drug offenders, for example, and the aggressiveness with which she prosecutes police officers for acts of violence.

What do you make of the calls to defend or even abolish the police?

What I find so compelling about abolition, initially in the prison context and extended to the police as well, is that it shifts the conversation and forces us to go through experiments in which we imagine what it would take to build that world. I think that exercise is very important, because it pushes us further than we are naturally inclined to go. Cultivating a broader imagination is an incredibly important part of this work, because as you know from my book, often it was lack of imagination that caused people to fall back on [punitive policies]. 

That's what caused D.C. Councilmember David Clarke to call the police rather than public health experts when he was overwhelmed with letters about heroin addicts in public space. He was anti-drug war, but he couldn't imagine responding to a call for help with heroin addicts with anything other than police. That's a very common move from even really good and progressive people. 

People who are for defunding, for abolition, are absolutely right about reinvesting that money into alternative structures that support communities. But the reinvestment part doesn't follow naturally from the terms. We might want to come up with a term that captures the new stuff we want to do. I think that's particularly important because one of the reasons Black communities have ended up supporting more police is that Black communities have always wanted their fair share of the resources.

Then, the evidence suggests the United States has too many police officers doing prophylactic, preventative, or stop-and-frisk style policing. The style of policing that leads to district level harassment, pulling people over for no reason. But we have too little investment in the parts of police departments that investigate unsolved crimes. I'm talking about the investigator or the detective who comes to your house after there's been a robbery, an assault, a rape, or homicide. 

As compared to European countries, in the United States we actually underinvest in those parts of our police departments. Jill Leovy’s book Ghettoside shows this in dramatic detail. She describes an LAPD that's stopping and frisking Black drivers wantonly and yet the homicide detectives are still relying on a fax machine and the fax machine is broken. They have to go with their own money to Staples to buy a printer. Meanwhile, other aspects of the department are kitted out in this ridiculous riot gear that makes them look like they're in Fallujah. 

That under investment is particularly damaging to Black communities because we're disproportionately victimised by crime. Because of racism and this allocation of resources, the police are less likely to respond in Black communities. The kids I used to work with in the charter schools in DC, we talk about no snitching, but one of the reasons they would never call the police after they'd been victimised by crime is they would say, “They're not even going to come. You're wasting time.” 

I did a Q&A with Jill Leovy too and her argument is one I've struggled to articulate in our present moment. She argues the state doesn't have a monopoly on violence in low-income Black neighbourhoods, because investigations of violence are deemphasised and crime victims or their loved ones often take retribution into their own hands.  But right now, establishing or preserving the state's monopoly on violence isn't an appealing talking point. 

Yes, this is another thing nobody's talking about. Whatever we're going to do instead of the police has to be accountable to the public. The best, most direct way to have accountability is to have the individuals be public employees. As long as we have 300 million guns in this country at least some of those state employees are going to themselves be armed. It's unreasonable to ask them to do the job without it. Not as many need to be armed as are armed now, but some of them need to be. But they can't be hiding behind union contracts or civil service protections which make it impossible to remove even the worst performing, most abusive officers. 

We can not call them police if we want to. That's semantic, but maybe symbolism matters. But those people have to be state employees. They can work with community-based nonprofits, but there are also communities that don't have as robust of a nonprofit network, and they deserve protection too. These [community] groups have to be accountable to the state and, when they don't exist, the state has to be there. 

Progressives get all the points I just made when it's applied to education. The notion that things be public and accountable to the state is understood when it comes to schools. It's exactly why so many people on the left are opposed to charter schools, because they say they don't have public accountability. They want these things to be a state function. But this point about the difficulty in removing this entirely from the hands of the state is, I think, one that liberals and progressives understand from other contexts.

Jake Blumgart is a staff writer at CityMetric.