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Tuesday, October 15, 2019

Honolulu and D.C. could soon join global warming-litigation craze

Climate Change

By John Breslin | Jun 17, 2019


D.C. Attorney General Karl Racine is planning a lawsuit against Big Oil over the alleged effects of climate change

WASHINGTON (Legal Newsline) – Government officials in two more areas are believed to be considering suing fossil fuel companies in a bid to force them to pay towards the cost of mitigating the effects of climate change - even though the two biggest rulings in this litigation have been in favor of Big Oil.

Several governments - including the cities of New York, Oakland, San Francisco, Baltimore and Boulder, Colorado; one state, Rhode Island; and counties in California and Washington - have filed suit against oil and gas companies, including ExxonMobil, Chevron and BP.

The plaintiffs have hired private lawyers (mostly at Hagens Berman and Sher Edling) on contingency fees and allege the companies knew from the 1970s that the extraction of fossil fuels had a direct impact on the climate. They want the companies to pay for the cost of mitigation of rising sea levels and other impacts associated with climate change.

Federal courts have thrown out two actions taken by New York City and jointly by San Francisco and Oakland. They are appealing.

In the California case, Judge William Alsup of the U.S. District Court for the Northern District of California, found that the issue of climate change “deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case."

But these setbacks have not deterred other officials from considering action, with Washington, D.C. recently publishing a request for bids from attorneys to act for the city in an action specifically naming Exxon. 

Honolulu is also reported to be considering action.

The D.C. request, which states the contract is contingent on victory and worth a maximum of $26 million, repeats many of the claims made in other suits, include that Exxon was "aware that its fossil fuel products were significantly contributing to climate change, and that climate change would accelerate and lead to significant harms to the environment in the 21st century."

Exxon, it is alleged, "failed to inform consumers about the effects of its fossil fuel products on climate change." 

District of Columbia Attorney General Karl Racine, who signed off on the request for bids, cites potential violations of D.C.'s Consumer Protections Procedure Act and other district laws.

The Office of the Attorney General, the document states, has "determined this conduct should be the subject of an investigation or litigation against Exxon to secure injunctive relief stopping violations of the CPPA or other District law, as well as securing consumer restitution, penalties and the costs of any litigation."

The office of Washington, D.C. Mayor Muriel Bowser did not immediately return calls or emails from Legal Newsline asking for comment.

Exxon and other fossil fuel companies have vigorously defended themselves against the actions, largely on the basis that climate change is a global issue and that individual companies cannot be linked to acts that have directly caused injury under tort law.

Further, Exxon has detailed what it believes is a concerted campaign to drag it and other companies into the courts. On its website, the company dates this campaign to a meeting of environmental activists and class action lawyers at a conference in La Jolla, California, in 2012.

Activists wanted to "use litigation to gain access to internal energy industry documents on climate change, in hopes of creating scandal that would force a settlement similar in scope to the one reached with Big Tobacco," the website states.

One of the first was taken by then-New York State Attorney General Eric Schneiderman, who (before resigning amid scandal) pursued Exxon, claiming it misled investors about its knowledge of how much man-made emissions had an effect on the climate. 

This was denied by Exxon, which, in one brief to a New York Supreme Court, described Schneiderman's complaint as one "filled with inflammatory, reckless, and false allegations" of an “ongoing fraudulent scheme” and “sham” business practices.

In what is continuing litigation, last week New York Supreme Court Judge Barry Ostrager in Manhattan dismissed a number of Exxon's defenses in the case, including that Schneiderman was involved in "official misconduct" as part of an "activist agenda." Its remaining defense centers on the accusation the attorney general singled out Exxon and acted in bad faith, according to a report in Bloomberg.

As that and other cases continue, and Washington is poised to begin litigation, reports suggest Honolulu may file a case against oil and gas companies.

The office of Honolulu Mayor Kirk Caldwell did not immediately respond to multiple requests for comment - via email, phone and text - from Legal Newsline.

Honolulu is hosting the United Conference of Mayors later this month and into July. Climate and the alleged responsibility of fossil fuel companies is either on the agenda or among the resolutions to be voted on.

Caldwell will deliver a talk on "Working with Water - Coastal Cities in the Climate Era." But he also is the signatory of a resolution that supports cities' rights and efforts to mitigate climate change damages and protect taxpayers from related adaptation costs.

The resolution is co-sponsored by mayors Tom Butt of Richmond, California; Bernard Young of Baltimore; Jackie Biskupski of Salt Lake City, Utah; Libby Schaaf of Oakland; Martine Watkins of Santa Cruz, California; Pauline Russo Cutter of San Leandro, California; and Suzanne Jones of Boulder.

Previous conferences adopted resolutions stating that "human activities are largely responsible for the accelerating changes in the global climate, and that it poses a major threat to the health and livelihood of American cities."

The resolution before the mayors this year states that "America's courts play a critically important role in our system of checks-and-balances, and in 1999 the U.S. Conference of Mayors adopted a resolution opposing state and federal legislative efforts to preempt local government access to the court system."

It adds, "Several major fossil fuel companies and related trade groups are advocating for legislation that would give fossil fuel companies immunity from lawsuits over climate change-related costs and damages or to eliminate municipalities' power to bring suit or assert specific causes of action."

The resolution, which argues that city residents, workers and businesses should not bear the sole cost of mitigating climate change cost, calls on Congress to make sure cities have access to courts "to resolve disputes over the climate change-related damages and adaption costs."

"Mayors oppose any legislation, whether in Congress or state legislatures, that attempts to limit or eliminate cities' access to the courts by overriding existing laws or in any way giving fossil fuel companies immunity from lawsuits over climate change-related costs and damages," the resolution continues.

The conference also includes the 2019 Mayors Climate Protection Awards presentation, which will be presented by Gerard Dehrmann, a senior vice president of public affairs with Walmart.

The gathering of mayors follows a recent event hosted by the University of Hawaii's Environmental Law Program. This brought together experts to discuss the "science and economics of climate change on Hawaii and legal strategies to deal with them," according to a university press release.

In the immediate aftermath of the May 3 event, UH School of Law Associate Dean Denise Antolini, Charles “Chip” Fletcher of the university's Department of Earth Sciences, and the Center for Climate Integrity Legal Director Alyssa Johl argued in an op-ed published in the Honolulu Star Advertiser, that "Hawaii taxpayers and communities should not foot the bill for the climate-induced damages to our islands."

While the list of attendees to the conference is not yet finalized, it does not yet include the mayors of communities in south Florida, notably Fort Lauderdale and Miami Beach.

Fort Lauderdale, which was approached by organization Earthrights International (ERI) asking it to file legal action against fossil fuel companies, has said it has no plans to do so.

The city of Miami Beach spokesperson Melissa Berthier, in a brief statement to the Florida Record, said, "Regrettably, the city of Miami Beach is disinclined to discuss this subject matter."

More recently, the city published an edition of its magazine devoted to climate change and held a conversation involving Mayor Dan Gelber and other senior city officials charged with dealing with the consequences of rising sea levels, particularly to its stormwater infrastructure. But none of the officials, including the mayor, raised the issue of litigation during the hour-long discussion of climate change.

"We looked at a 30-year horizon,” said Eric Carpenter, Miami Beach Assistant city manager, in a CBS 4 news story. “We need to build a foot of additional adaptation or elevation to our existing roads, above our max tidal events.”

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Organizations in this Story

Attorney General for the District of Columbia City and County of Honolulu Exxon Mobil New York Attorney General U.S. District Court for the Northern District of California

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