Back in 2007, the Intergovernmental Panel on Climate Change (IPCC) noted the likelihood of an increase in what is now often referred to as "climate change" or "climate justice" litigation. The reason for the increase, according to the IPCC, is that "countries and citizens will become dissatisfied with the pace of international and national decision-making on climate change." Just over a decade later, that observation now looks quite prescient, with several cities and counties taking the oil industry to court over climate-related damages.
In addition to suits against national governments based on international and national environmental laws in various countries, the IPCC pointed to the first climate change tort case brought in the United States: American Electric Power Co. v. Connecticut (AEP). In that case, states sued major oil and gas companies for climate change harms caused by their greenhouse gas emissions based on the common law action of public nuisance. The case was eventually dismissed on the grounds that the Clean Air Act vests the power to regulate such emissions in the EPA, and thus courts did not have authority to address the issue through federal common law. The defeat forced advocates to rethink their legal strategies, but it hasn't deterred them from pressing their case in court.
Indeed, some of the newer cases appear to have a greater chance of success than AEP, in part because of those different approaches. But two other things have changed, as well. First: the evidence is strong and getting stronger. We know a lot more about the causal links between climate change and the greenhouse gas emissions from the fossil fuel industry, and between climate change and myriad risks to life on this planet, such as sea-level rise, droughts, wildfires, and hurricanes. Second, we also know a lot more about the fossil fuel industry's continued marketing of its products notwithstanding its decades-long knowledge of these links.
Among the promising recent cases are those filed last year by several California counties and cities. The localities sued Chevron, ExxonMobil, Shell, and other major fossil fuel producers for current and future damage to homes and infrastructure caused by climate change-induced sea-level rise. Importantly, the plaintiffs filed in state court because they brought only state common law claims, rather than a federal common law claim such as that in AEP. While the U.S. Supreme Court's ruling in AEP concluded that the states' federal common law claim of public nuisance was "displaced" by the Clean Air Act, the Court left open the possibility that the plaintiffs could bring state claims for climate harms.
Although longstanding, federal common law such as the public nuisance claim in AEP is much more limited than state common law, both in types of claims and the frequency with which they are brought. Federal common law cases are relatively rare because state common law is usually more appropriate for the types of harms experienced by individuals and municipalities; only in exceptional cases involving interstate pollution has the Court required a federal law of decision to ensure uniformity.
In all the California cases, the fossil fuel industry argued that climate change issues made the cases exceptional, requiring resolution under federal law. Thus, they argued, the state claims were preempted by federal common law and belonged in federal court. The cases were consolidated into two; one federal district judge agreed that federal common law preempted state common law while another held that it did not and sent the case back to state court. The Ninth Circuit Court of Appeals will ultimately decide this jurisdictional question, and for several reasons, it is important that the appeals court allow the plaintiffs to proceed under state common law.
The California and other recent climate justice tort suits filed by state and local governments are based on extensive scientific evidence of the causal link between the companies' marketing of fossil fuels and climate change. Additionally, the plaintiffs have evidence supporting the specific, large contributions of each particular defendant's products to climate change. Finally, they present documentation of the defendants' knowledge of their contribution to climate change and its devastating consequences and their response to that knowledge: namely, a concerted disinformation campaign about climate change and its connection to fossil fuel use. Although such evidence would support a federal nuisance claim, state tort law is in many ways better equipped to handle claims that allege liability for the manufacture and marketing of products.
First, state tort law is a much richer body of law than the federal common law of nuisance. The plaintiffs in several of the California cases allege not only state nuisance claims, but also several product liability claims that are unavailable in federal common law. The ability to allege multiple claims in this way does not, of course, allow for multiple damage awards; plaintiffs can recover only once for a given injury. But it does give plaintiffs the opportunity to more fully describe – and thus voice their opposition to – conduct that they claim has unlawfully harmed them.
Second, because state tort law is usually applicable and federal common law exceptional, state judges have significantly more expertise with common law and its development than federal judges do. Consequently, even though the recent climate justice tort claims are novel in their specifics, they are the sort of claims that state courts have been addressing on a regular basis for over half a century.
In addition to relatively slow-moving disasters, such as inundation of communities caused by sea-level rise, climate change has caused an increased frequency of devastating storms such as the hurricanes that pummeled Gulf Coast states and U.S. island territories in the Caribbean in 2017. As will be discussed in an upcoming Center for Progressive Reform report due out later this year, the government's response has been woefully inadequate, particularly in the U.S. Virgin Islands and Puerto Rico. For that reason, and also because scientists are now able to attribute specific extreme weather events such as Hurricanes Harvey and Maria to anthropogenic greenhouse gas emissions, we may see individuals, communities, and the governments of those states and territories bring suits similar to that brought by California localities to secure some relief.
Of course, litigation won't undo the damage that has been done, and we'll be feeling the impact of the companies' greenhouse gas emissions for decades, even centuries.to come. But the litigation does hold out the prospect of compensating communities who are and will continue to suffer immense harms and disincentivizing the fossil fuel industry from continuing its planet-destroying ways.
Although comprehensive federal legislation and regulation is urgently needed to address the threats presented by climate change, state tort law is urgently needed to address the myriad climate change harms exacerbated by the federal government's inaction. This is the gap-filling role that state tort law has been serving for decades. Now more than ever, state tort law must be allowed to provide the American people – particularly those communities most vulnerable as a result of social inequality – a safety net when federal protections are weak or non-existent. Lives depend on it.