The Climate in Emergency

A weekly blog on science, news, and ideas related to climate change


Leave a comment

Considering Damages

The fires in California are all over the news these days. The death toll keeps rising as bodies are found–two hundred people are missing, now. Generally speaking, wildfire is a climate change story, but while I want to cover current events, this story is too new, and there isn’t yet anything to say about it that I have not said about other fires before.

But if, as I suspect, the severity of this week’s fires are due in some part to climate change, then that lays the blood of the dead on the hands of climate deniers (not skeptics, there’s a difference), certain industrialists, and certain political leaders who have, decade after decade, refused to act. Same with the death and destruction of recent hurricanes, some of which have been unambiguously linked to climate change.

So, why not sue?

And, indeed, some people are suing, with varying degrees of success.

Suing for Climate

I first heard about a climate change lawsuit through social media some years ago, but since I didn’t hear a peep about the matter by any other means, I wasn’t sure it was real. Turns out, it was not only real, but what appeared on Facebook was the tip of the iceberg. There isn’t just one climate lawsuit, but many, all across the world.

If you’re interested in details, there’s actually an online database where you can look them all up. Click here to check it out.

The US has more of these suits than anywhere else in the world, and it’s somewhat easier to get information on these cases, at least for an American like me. There are two main approaches–suing fossil fuel companies and suing governments.

Suing Companies

Fossil fuel companies are being sued, not just for producing fossil fuels, but also for actively obstructing climate action, as some did by spreading misinformation and fostering public doubt about the reality of climate change.

Curiously, in the coverage I’ve read, such obstruction is generally framed as a failure to warn the public. For example, one article quotes a law professor as follows:

“The industry has profited from the manufacture of fossil fuels but has not had to absorb the economic costs of the consequences,”┬áKoh┬ásaid. “The industry had the science 30 years ago and knew what was going to happen but made no warning so that preemptive steps could have been taken.

“The taxpayers have been bearing the cost for what they should have been warned of 30 years ago,” Koh added. “The companies are now being called to account for their conduct and the damages from that conduct.”

It’s important to recognize such framing is itself misleading. Climate change, and the basic mechanics of how it works and why it’s a problem, were public knowledge 30 years go. The reason I know that is I was 11 and I remember being well-informed about it. Anything a geeky but otherwise unremarkable 11-year-old knows about is not being kept secret by Exxon, or anybody else.

The truth is that the public is culpable for climate change, as a decisive majority has spent decades now in active denial of warnings that were readily available for any interested person behind. But whatever innate resistance the citizenry may have had to climate action was actively ginned up by companies who knew better and attempted to protect their business interests at the expense of everybody else.

That’s a more nuanced, but arguably more nefarious offense.

Hopefully, suits based on calling out that nefariousness will work, because suits against energy companies for causing climate change itself are not working well. Several have been dismissed already.

It’s not that anyone has argued in court that climate change isn’t real, isn’t caused by humans, or isn’t important. Instead, these suits are failing because air pollution is already addressed by the Clean Air Act, which (for reasons I don’t personally understand) means that the issue must be handled by Congress and not by the courts. It’s also difficult to pin a particular plaintiff’s woes on an individual company. Some judges have asserted that because the problem is so big that it clearly needs Federal, even international leadership, that local or regional courts have no place in the solution.

Leaving the rest of us stuck when Federal leadership fails.

But the point is that yes, there are cities suing companies over specific climate-related damages.

Suing the Government

The lawsuit I first heard about was probably the Juliana Case, in which a group of 21 children and young adults (it’s sometimes called the “children’s case”) are suing the Federal government for not protecting their right to a livable planet. There are also similar suits against at least nine states, although some of these have been dismissed.

The Federal government has been trying very hard to get the Juliana Case dismissed before it is even heard. So far, no such attempt has been successful. The process has stretched on for some three years, now. The fact that it is still going is good news, but it’s far from clear whether the young people will win, or even if they will ever get to trial.

Winning Suits for Climate

So far, I’m not sure if any of these cases have actually won in court, at least not in the US. I haven’t heard of any. What happens if and when they do?

If the Juliana Case wins, the courts could order the Federal government to cut emissions. The situation could be analogous to school integration, which also proceeded, at times, on point of court order.

If the suits against companies win, plaintiffs could get money to use for climate change adaptation (such as cities building sea walls). Perhaps more importantly, the financial losses–and threats of financial losses–could force energy companies to get serious about transitioning to climate-sane energy sources.

The problem has been that there really aren’t any immediate negative consequences for anyone who chooses to put their narrow self-interest first. Environmentalism has lacked teeth. If the electorate refuses to hold anyone accountable for destroying our planet around us, it’s possible the courts can do something.

Course, that depends on who the judges are.

Advertisements