Taking It To Court: Legal Strategies for the Environment and Human Rights
Over the past three decades, there has been a litany of efforts to address and tackle global climate change. That includes a host of keep-it-in-the-ground campaigns, tactics and strategies to try to keep oil, gas and coal in the ground, as well as corporate campaigns against ExxonMobil, Shell and Chevron, among others.
More recently, however, environmental groups have started to look in another direction to address this global dilemma: the courts. These efforts are using litigation to address climate change and the devastating effects it’s caused and continues to wreak on our planet and humankind. During this fascinating panel from the 2018 Bioneers Conference, attorney Kate Sears, Marin County, CA, elected supervisor and chair of Marin Clean Energy, Abigail Dillen, president of litigation for climate and energy at Earthjustice, and Coreal Riday-White, community engagement manager for the environmental nonprofit Our Children’s Trust, joined Sierra editor-in-chief Jason Mark to outline and discuss the innovative and promising litigation that’s happening at the local, state and national levels right now.
JASON: Kate, let’s talk about this lawsuit filed by Marin County and San Mateo County, and a bunch of other jurisdictions against some of the major carbon polluters seeking to recover damages from climate change-related effects. Why did you and the other members of the board of supervisors make the decision to sue ExxonMobil and Chevron?
KATE: In July 2017, the County of Marin, the County of San Mateo, and the City of Imperial Beach were the first three jurisdictions to file lawsuits against members of the oil, coal, and gas industries. Focusing on Marin, as I represent Southern Marin, I’ve been very engaged as a country supervisor in addressing sea level rise. We are already very well aware of the impacts of sea level rise here in Marin. In one of our areas, a little north of Sausalito as you would go north on 101 to go into Mill Valley, there’s a park and ride. It’s one of only two ways into our largest town in Southern Marin. It now floods over 30 times a year from king tides. This is not even storms. This is blue sky flooding.
We have the advantage, really, of having our feet wet, and knowing that climate change and sea level rise are a reality, but we wanted to learn more. So a couple of years ago we started doing a sea level rise vulnerability assessment for our entire county. It was a collaboration between our county and our city and our towns, to really look at different scenarios going forward of the anticipated impact of sea level rise in our county. And it’s tremendous.
We have an analysis of coastal Marin with water on both sides. Sea level rise is a really serious issue for us. We looked at all of the assets that are impacted, and will be even more impacted as we go forward in time with different scenarios, and realized that we have serious trouble ahead.
As an elected official, I think about what we’re going to do about that, and who’s going to pay for it. We got the opportunity with pro-bono representation from a fabulous firm to bring this lawsuit against the fossil fuel industry in state court. It’s basically established legal claims of nuisance and liability, and strict liability, product design, and trespass.
There are reasons that I, as a former lawyer and a litigator, liked this opportunity. One is the state of the science and how much it’s developed, and our ability to attribute the amount of greenhouse gas emissions to each of these defendants. Mind you, these 24 defendants taken together, their impact is about 20% of all greenhouse gas emissions worldwide. So that was important to me, really having a strong scientific basis for the lawsuit.
Here’s a quote from an Exxon study from 1979: “The present trend of fossil fuel consumption will cause dramatic environmental effects before the year 2050.” Another report from 1982 said once the effects are measurable, they might not be reversible, and little could be done to correct the situation in the short term. These industries have very sophisticated engineers. They have experts that are doing these reports and advising them.
So what did the industry do? In some instances they took steps to improve the adaptability and the sustainability of their own oil-drilling platforms in anticipation of the impact of sea level rise. Did they go public with this information? Did they go to any elected official and share this information? No, they didn’t. Instead what they did was spend millions of dollars on a misinformation campaign.
We feel that these are a group of defendants that knowingly created damage in our community, and they should have to pay for what they’ve done. This lawsuit is about getting damages for the harm caused by the conduct of these oil, gas, and coal companies. We’re not trying to legislate climate change. This is an old-fashioned kind of case that seeks damages, so we have a fund of money to protect our residents and do what we need to do to plan for our future in a responsible way.
JASON: And to put this in some broader context, there are also lawsuits from cities and counties in Colorado, King County, WA, the State of Rhode Island, the City of Baltimore….
KATE: Thank you for raising that. As I mentioned, the three of us were the first that went out there in our group, also represented by our same group of lawyers. We now have the City of Richmond, the City and County of Santa Cruz, the City of Baltimore, and the State of Rhode Island. And then there are the lawsuits that were filed by other entities, like King County.
JASON: Abby, I’d love to ask you while still keeping it accessible for a lay audience, if you can put this in context of a First Nation’s community in Alaska — Kivalina. They filed a case against Murphy Oil, an offshore drilling company in the Gulf of Mexico after hurricane Katrina. Is there anything to your mind that makes this litigation different or perhaps increases the chance of success? Has anything changed since that first round of climate litigation about 10 years ago was filed?
ABIGAIL: I would say that one of the biggest differences between the litigations that are going forward now as opposed to Kivalina and some of the first efforts is that the science has advanced so much. It’s possible now to do what climate scientists are calling a sort of a “forensic analysis.” When you look at the bleaching of the Great Barrier Reef, or you look at the flooding in Louisiana or the impacts of hurricane Sandy, you can determine and you can meet a legal standard that this is more likely the result of climate change than not. In fact, we know by a factor of 100 that this incident was made more likely by climate change.
That gets to the legal issue of causation. If you can prove that the emissions of a large group of what we’re calling the “carbon majors” — essentially oil, gas, and coal companies — have contributed a large share of global emissions, and then you can link those emissions to actual damage, you can quantify that damage in dollars. Then you start having something that looks like a much more conventional tort suit, holding actors accountable for behaviors that have caused damage that’s quantifiable.
The real question is really a philosophical question in my view. Are the courts ready to look at the behavior of the carbon majors as culpable? What Judge Alsup, the federal district court judge in the San Francisco case, and the judge in New York were asking for was briefing on the whole history of industrialization, and asking a question fundamentally: Who’s culpable for this damage? I think their sense is that we’ve all participated in the benefits of a fossil fuel economy and that the court is not the right place to determine who should pay for the negative consequences.
In my view, what that misses is the affirmative choice by these fossil fuel companies to hide the ball, to create a disinformation campaign. No other country is debating the existence of climate change, only the United States. And that alone is having significant impacts on us.
These cases are really pushing the envelope. Win or lose, they are properly in the courts, and they draw on fundamental principles that our society agrees upon. They are putting climate science on trial, and it’s a place where facts can be heard, where facts matter.
JASON: I do want to point out, the federal district court of San Francisco also was asking the plaintiffs and the defendants to balance new harms against benefits. And that’s the tough thing: grappling, for lots of the public, with how we all get benefits out of fossil fuels.
KATE: Judge Alsup clearly hadn’t been paying attention to climate change because he did do a whole workshop to get himself informed — good for him — but he was looking at the wrong question. We’ve had products and litigation in the past. Think of asbestos. Think of tobacco. We’ve had products that the manufacturers knew were damaging. We have a court system that can deal with tort liability, that can deal with impacts that are the result of these products. The question really is different, and you layer on top of that, like tobacco, the intentional misinformation and misrepresentation, and spreading of doubt.
We were glad that we had Chhabria, US District Judge for the Northern District of California, who said this is about damages that are created by a company and by their conduct, and this is an issue that can be adjudicated by the courts, and it belongs back in state court. But it creates challenges for lawyers and judges and lay people in remembering which conversation is the most appropriate to what’s in front of you at the time.
JASON: So these cases are suing the carbon majors, but Coreal, your case is much different. Let’s talk about Our Children’s Trust and the claims being made by your 21 young plaintiffs.
COREAL: In a lot of ways, it’s kind of the flip side of the cases against the carbon majors. Whereas those are seeking damages and focusing on adaptation to damage that’s already happened and we know is going to happen, our case is not seeking damages. It’s focused on remediation. Our case is about trying to slow the emission of greenhouse gases and sequester the CO2 that’s already up there, that’s making for this climate chaos we’re starting to see. The fundamental basis behind it is that the government, as the sovereign authority that has control over the essential natural resources we all need to live and that are protected under the Public Trust Doctrine, like our air and our water and our seas, they have a duty to make sure that those essential natural resources are not so depleted that the next generation can’t have them.
On top of that in the Juliana case, what’s also at issue is the plaintiffs have brought a claim under the Fifth Amendment, saying that they have a right to life, liberty, and property without undue influence or loss. The government cannot come in and take away your life or your freedom or your land without getting due process of the law. These plaintiffs are claiming that their government, through all the actions they’ve taken over the last 70 years, have caused a crisis that is now taking away their freedom, eating away at their property and building on the land, and will for future generations threaten their lives. The government has a duty to not violate those fundamental rights. That’s another difference in terms of the cases. Corporations might not owe you that duty, but the government does.
Some of the similarities, though, are about knowledge. We have documents that show that well before we had an EPA, the executive branch of this government had their scientists going out and researching what this burning of fossil fuels, what this CO2 culmination in the atmosphere, was going to mean for the future. In a 1965 report, commissioned by President Johnson, the scientists came back and said at this rate, if we keep on burning fossil fuels the way we are, there will be 25% more carbon dioxide in the atmosphere by the year 2000. And if that happens, we’ll see marked changes in the atmosphere and the weather that we cannot control from the local level. With the benefit of hindsight, we can go back and look at what the CO2 levels were in the atmosphere in 1965 and what they were in 2000, and they were almost exactly 25% more. The scientists knew what they were talking about.
In 1969, a report said that sea levels will rise by 8 to 10 feet by the year 2100 at this rate. A 1970 report said that the issue of the atmosphere and climate “may well determine whether man perishes or survives.” That’s the White House scientists. It’s not us.
JASON: And Lyndon Johnson mentioned it in the State of the Union address in ’65 or ’66, right?
COREAL: Yeah. They read these reports. They knew it. And yet they still continue to base our energy system on the burning of fossil fuels. They continue to permit the expansion of a fossil fuel-based system. They continue to subsidize the industry, give tax breaks to the industry, lease our publicly owned land to the excavation and development of fossil fuels, including off the seashore. Each one of those takes the government saying yes, let’s do that. That’s an action — that’s not an inaction.
The United States is responsible for a full one-quarter of all the CO2 emissions in the atmosphere. We’ve done more to cause this crisis than any other country, and we’re still emitting a lot. Maybe we’re not number one anymore, but we’re one of the very top emitters, even still. And clearly with the current administration, those policies are only regressing.
But this case is not in response to the current administration. The named defendants originally were President Barack Obama and the heads of his certain agencies, the EPA, Department of Energy, Transportation, Defense. Trump and his administration just inherited it when they came into power. So in that sense it is not political. Most importantly, what it’s asking for is just the court to order the executive branch to create and implement what we call a climate recovery plan, a plan based on what the scientists say we need to do to get back on track, to get climate stability by the end of this century.
JASON: Why is it important for you all to enlist and to work with young people as your plaintiffs?
COREAL: Levi was 8 when we filed. He’s 11 now, and he’s so money! Sometimes our detractors will say that we’re just using these kids, or there’s kind of a front. And let me tell you, we are not. These kids know what’s at stake. They’ve done the least to cause this crisis, and they’re the ones that are going to be affected by it the most.
One of the claims that they brought is an equal protection claim under the Fifth Amendment, wherein it says that all of our laws should be applied equally to all citizens. Their claim is these current policies and laws you have are not being applied equally when you guys are the ones benefiting from them and we’re the ones that are going to have to pay for them.
JASON: Abby, when the case was first filed, a lot of attorneys thought it was quixotic and that it was a pretty big pass to make these claims under equal protection and invoke the Public Trust Doctrine. What has been your sense of it?
ABIGAIL: Well, there were many skeptics of the novel ways that this case pushes the law, and people wondered about how a remedy could be fashioned. I think it was a brilliant stroke to make this a case on behalf of young people, even putting aside the international equal protection claims. Even the skeptics recognized the moral force of the case, and recognized its place as a tool to elevate and educate, and to give these young people voice. Regardless of how people may have felt about the ultimate merits and chances in court, I think overwhelmingly the feeling has been that this is an amazing act of courage, and who can’t be with these young people with their incredibly righteous cause?
I will say that reading Federal Oregon magistrate Judge Aiken’s initial decision rejecting the first motions to dismiss, the government was the most skeptical of all. I think they viewed this case as one that they could easily get dismissed. And so this Magistrate Judge’s opinion was very closely awaited and watched, and the day it came out, we were having a meeting of our trustees, and it’s not our case, and I had just a talk to give to our litigation committee, and I was going to talk about all of our work, but I felt that her decision was so astonishing and consequential in its recognition of a federal trust, a due process claim. It was so incredible to have a judge really internalize the stakes and to say, I’m not going to leave this to the other branches; I think these kids are properly before the court. And so it was a stunning decision.
Earthjustice has been a little bit involved on the edges as this case has moved toward trial and discovery. You can imagine the federal government’s reaction — it’s been like a disbelief. They have made Hail Mary moves to the Ninth Circuit Court of Appeals and to the Supreme Court to stay this case. So far they’ve been unsuccessful. They have another such bid before the Supreme Court now. We’ll see. The composition of the court has changed since their last unsuccessful effort.
To be fair to the skeptics, this is the kind of case that is likely to command the Supreme Court’s attention. It’s likely to command the attention of Congress to the extent it’s successful. And so I think the ultimate outcomes are subjected to tough politics.
JASON: So Coreal, you’re scheduled to start trial on October 29, 2018. So what is the latest? [Editor’s note: this trial is currently scheduled to begin in summer of 2019.]
COREAL: As Abby said, the defendants really don’t want to go to trial. Our lead attorney Julia Olson, who’s the founder and chief legal counsel of Our Children’s Trust, had a great line at the March for Science this year: “We’re giving science its day in court, where facts are facts and alternative facts are perjury.” Again, legal, reasonable legal minds could probably differ on a lot of that stuff, but I really do believe they just don’t want the testimony. We have some of the world’s most recognized experts that are working pro bono for these youth plaintiffs, including Dr. James Hansen and Nobel prize winner, Joseph Stiglitz, an oceanographer, people from mental and physical health fields. These experts are going to lay out what’s happening and what’s going to happen in such clarity. And the evidence we have about government knowledge is not something I think they want to see the light of day.
JASON: So we got into the particulars of these case(s), but let’s step back and see the forest for the trees: How do these cases help in the larger effort for climate justice for a stable, global atmosphere?
KATE: Litigation is something that’s important because we want to get money to help address the needs and the safety of our communities. But public education, getting everyone involved, and making sure that we’re talking and we’re educated about climate change, and we’re changing our practices and we’re doing everything we can to push others, and companies and businesses to change their practices is hugely important — doing that both on the adaptation and the mitigation side.
We need to be doing everything that we can in any possible way we can think about it, because as we all know, change is happening much more quickly than we anticipated. We have to be engaged in all different ways. There will never be enough money to solve or to really address the adaptation needs that we have to address the impacts of sea level rise and climate change. Our lawsuit is about sea level rise, but as we all know, that’s only one aspect of climate change, and for those of you who are Californians, you know about the intense fires that we’ve had. We’re seeing climate change impacts all over the country — all over the world. We have so much to deal with to try to make our society and our culture and our communities truly adaptable. But the urgency is palpable now.
JASON: Don’t these cases serve as public education vehicles?
ABIGAIL: For sure. I think that’s perhaps most important when it comes to deceit. The New York Attorney General’s office has thought about this litigation and the powers they have under New York statute to force companies to disclose what they’re up to. What they are doing with the kind of discovery of information that’s helped with the Exxon Knew campaign is to erode the social capital of companies like Exxon and Shell and Chevron.
When I was growing up, my association with Exxon was that they sponsored Masterpiece Theatre. The myth in our country is that these are the biggest contributors to American prosperity in history. This administration would like to bring that narrative back.
The other thing I would say is that investors are getting awfully nervous. It’s making the whole fossil fuels sector so nervous that you’re starting to see, in my view, very premature deals floated on the Hill, saying, “Sure. We would love to pay a carbon fee, but we want to be insulated for any liability for anything we’ve ever done in the history of the world.”
KATE: We have a lot of really tremendous activists in our community who have really done great work of trying to get carbon fees and really do a bipartisan effort. The problem is the Republicans are on board with that because one of the things that they want is a waiver of liability. You really need to pay attention to this, because it’s being sold as, “Well, the carbon tax is going to solve the problems, so you don’t need the litigation anyway.” That’s as far from the truth as you can possibly get.
JASON: Coreal, I want to just come back to this question about your case as a public education vehicle, but also an organizing vehicle. You guys have sparked a lot of media and grassroots attention. I know that before this administrative stay was announced, the Sierra Club student coalition is having solidarity rallies at federal courthouses across the country.
COREAL: Both of these cases really allow us all to grapple with the many issues that are at play. There’s of course the intergenerational issue. There’s the reframing of how we see industry and how we see government, and how each decision they make — and even kind of more broadly than that — how each decision all of us makes has an impact, one way or another. Either we’re making a decision that’s taking a destructive action or a corrective action. And I think that this case helps us reframe that in a way.
I think it’s also a chance to really engage civically for everybody, but especially for youth, saying this is what I want my future to look like. That’s pretty cool. And then the idea of like what is a fundamental right, and what is it that we hold dear as a nation? Starting to reframe the issue in a way that helps us look at all the small things but also think about the bigger things in a moral context and a legal context is powerful.
JASON: So we’ve talked about these sort of marquee cases, but there’s lots of other stuff happening. There’s just enforcement of the Clean Water Act, enforcement of the Clean Air Act, Endangered Species Act. When Earthjustice is in the case of, say, fighting the Mountain Valley pipeline or the Atlantic Coast pipeline, those are not always necessarily explicitly climate action cases, but they are advancing the interests of climate justice, right?
ABIGAIL: Yeah. In close partnership with the Sierra Club, we have been using all of the laws we have on the books — the Clean Air Act, the Clean Water Act, our federal waste statutes — to force our coal-fired power sector to clean up and stop making money off all of the pollution that it has imposed upon us.
When we started this work in the early 2000s, our major utilities were set to build a whole new generation of coal-fired power plants. We knew that we had to stop that if we were going to have any chance of combating climate change because they were the biggest polluters in the country. They still are the biggest polluters in the world. And we were successful in stopping a rush to build new coal-fired power plants — and then we realized we had to get to the existing coal fleet. And at that point, it was a little like Our Children’s Trust in the beginning, the sense that the Sierra Club, Earthjustice and others could do anything about coal in this country just seemed crazy to most people.
We had existing clean air health-driven regulation to try to start getting these standards for air, water, and waste. And we had some consent decrees that the Obama administration forced them to finally institute for the most polluting industry in our country. What that created was a set of obligations to clean up on the scale of hundreds of millions of dollars that finally put the choice to big utilities like Duke and Southern Company, and AMP and First Energy: Are you going to invest hundreds of millions of dollars in this old polluting facility or are you finally going to shut it down?
What we’re seeing is a wave of retirements of coal plants, except in states where the utility says, “Yes, I want to pay $100 million because I can put those costs onto captive rate payers, and I’ll get a rate of return on that investment.” That’s the case in much of the Midwest. That’s where lawyers have come in again, where we can go into public utility commissions. We don’t have a national energy policy. We have a state-by-state policy that is defined in these public utility commissions that operate like courts of law where you and I, as people who pay electricity bills, have the right to intervene as parties. Once we’re there, we can depose utility executives about what the basis for their assumption that an investment in coal or gas in California, for instance, is better than an investment in renewables. We can make motions.
What we’re able to do as lawyers is go in and say, We’re going to bust up this clubby show. We’re going to present our experts. We’re going to show you that clean energy is actually cheaper than retrofitting that old coal plant. Clean energy’s actually cheaper now than investing in a new gas plant. And we’re having success in places like Indiana and Kentucky, in making that case for clean energy.
As we’re using all of that work to shift the profile of our energy mix toward cleaner energy, that’s when we can start saying, Okay, let’s start electrifying transportation because we’re on track to cleaning up the power sector. Let’s get gas out of our buildings and start electrifying the buildings too.
Audience member: Do insurance companies pay out to those affected by disasters caused by climate change, and are they working on any strategies to be part of a solution?
KATE: As part of being a county supervisor, I also serve on the Bay Conservation and Development Commission. We’ve been looking at sea level rise issues for the San Francisco Bay for the last five years. One of the subcommittees we have is Financing the Future, and it’s been an exercise in frustration. But one of the industries that we’ve met with several times is the insurance industry.
They have said to us in meetings that they never insure what they know will happen. So as these megastorms happen more often, as the science and the predictions get better, that’s actually going to provide tools for the insurance industry to not provide insurance where we might want to see it. There are some people who are more hopeful than I and will say that the industry will be in transition and create new products and try to figure out ways to fund this problem — but I’m not seeing the kinds of development there that are positive for what we want to achieve. I think the securities markets are much more interesting, actually, and there are international re-insurance companies, some of the majors, who have been looking at climate change issues for quite a while now and are working on trying to develop new products to create funding streams for climate change adaptation.
JASON: I heard a good line the other day. I had an interview with Sheldon Whitehouse, the Senator for Rhode Island who’s been a leader on climate. He said climate change is going to get real for the financial markets when sea level rise intrudes on the horizon of a 30-year mortgage. In some places that’s going to be like next year. When it doesn’t make sense to get a mortgage on a home because you can’t get any insurance for it, that is really going to get people’s attention….
Audience member: What can we do in our own communities to prevent fossil fuel companies from expanding or emitting carbon dioxide into the atmosphere?
ABIGAIL: I’m thinking about the legal strategies you may have. In all of our states, we have under-enforcement of our laws, and if there is a facility that’s really going rogue in terms of the pollution it’s imposing on neighboring communities, it’s vulnerable to a lawsuit.
KATE: I think acting to stop pollution and finding out where there is pollution is tremendously important. But also trying to find allies and really develop renewable energy production and create these alternatives so people aren’t stuck just going to a utility that is getting power from a dirty energy provider, and that there is in fact that choice in your community can have an incredible impact.
COREAL: I’ll just add, remember that you can work with the law too. We support youth that sue their governments, but we also support youth that work with their governments at a local level to shape their own city ordinances. We call it the Youth Climate Action Now campaign, and it’s been great. Several cities in Oregon have tried it. They’ve actually gotten their city code to change to mandate reductions in fossil fuel use. So it starts by going to city council meetings and testifying, and it’s scary at first but it’s crazy empowering. Then you start to get one-on-one meetings with your city councilors and you start to talk about the policies. You put a face to it, and you tell a story, and then they get invested in it.
