Judge Should Not Have Deferred to Congress, Executive Branch in Fossil-Fuel Climate Case

By Elliott Negin

On Monday, a federal judge dismissed a lawsuit by San Francisco and Oakland against the five biggest privately owned oil companies for climate change-related damages. Why? He believes the problem is too big to be decided by the federal courts and that Congress and the administration should take care of it.

Fat chance of that happening anytime soon, and the courts are at least partly to blame.

In his ruling, U.S. District Judge William Alsup agreed with the plaintiffs that there is a "vast [scientific] consensus that the combustion of fossil fuels has … materially increased carbon dioxide levels," which has driven up average global temperatures and raised sea levels. Likewise, he noted that the oil companies "have allegedly long known the threat fossil fuels pose to the global climate," but nonetheless funded public relations campaigns that "downplayed the risks" and disparaged climate scientists.

At the same time, however, Alsup insisted that environmental harms attributed to burning fossil fuels have to be balanced with the fact that "the industrial revolution and the development of our modern world has literally been fueled by oil and coal."

"Having reaped the benefit of that historic progress," he wrote, "would it really be 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?"

The answer to the second part of the question is emphatically yes (and it doesn't require ignoring our own responsibility).

The Oil Companies Knew

Alsup is of course correct that industrialization would not have happened without fossil fuels. But he neglects to take into account the pernicious role the defendants—BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell—have played to block government action to curb carbon emissions over the last three decades. If the U.S. and other industrialized nations had begun the necessary transition to low- and no-carbon energy back then, the likely consequences of climate change would be significantly less dire.

Rising sea levels alone will wreak havoc along the California coast. San Francisco, Oakland and six other California jurisdictions that have filed similar climate lawsuits can expect accelerating sea level rise to threaten some 8,800 homes by 2045, representing $76 million annually in today's local property taxes, according to a recent analysis by the Union of Concerned Scientists. By the end of the century, some 52,000 homes that currently contribute $435 million in annual property taxes will be at risk.

As Alsup pointed out in his ruling, the alarm bells about climate change began ringing in the late 1980s. Thirty years ago—on June 23, 1988, to be precise—NASA scientist James Hansen generated front page news when he warned Congress about higher temperatures and rising seas. That same year, the United Nations convened the Intergovernmental Panel on Climate Change (IPCC).

A year later, 50 corporations and trade groups founded the Global Climate Coalition (GCC) to discredit climate science. Its charter members included none other than British Petroleum (now BP), Chevron, Exxon, Mobil and Shell.

Until it disbanded in 2002, the GCC conducted a multimillion-dollar lobbying and public relations campaign to undermine national and international efforts to address global warming. One of its fact sheets for legislators and journalists encapsulated its main talking points, disingenuously claiming that "the role of greenhouse gases in climate change is not well understood" and that "scientists differ" on the issue.

Thanks to a leaked internal GCC memo from 1995, we now know that the coalition's own scientific and technical experts were telling its members that greenhouse gases were indeed causing global warming. "The scientific basis for the Greenhouse Effect and the potential impact of human emissions of greenhouse gases such as CO2 on climate is well established," the document stated, "and cannot be denied."

Exxon scientists, meanwhile, were aware of the threat posed by fossil fuels as early as 1977, according to a 2015 investigation by InsideClimate News. Nevertheless, the company purposely chose to emphasize "uncertainty" and, since it merged with Mobil in 1999, it has spent tens of millions of dollars on a climate disinformation campaign that continues to this day.

Courts Need to Take Responsibility

Alsup concluded that the courts are not the proper venue to address climate damages. Given the U.S. Supreme Court has ruled that the U.S. Environmental Protection Agency has the authority to regulate greenhouse gas emissions under the Clean Air Act, Alsup contends the issue is best left to Congress and the administration to handle.

Alsup's conclusion presents us with a Catch-22. Kicking any decision about curbing global warming emissions to the political branches of government ignores the fact that both Congress and the current administration are tightly tied to the coal, oil and gas industries. And that hand-in-glove relationship is largely due to questionable Supreme Court decisions.

The genesis of our predicament can be traced back to the early 1800s. Since then, the Supreme Court has issued a series of rulings that have granted corporations the same rights as people. More recently, in 1976, it ruled that limits on campaign contributions violate the First Amendment, essentially equating money with free speech. And in the 2010 Citizens United case, the court ruled that the government cannot limit a corporation's independent political donations.

These decisions have enabled the fossil fuel industry to exert undue influence over federal energy policy. Not only have coal, oil and gas companies collectively spent tens—if not hundreds—of millions of dollars over the past few decades to manufacture doubt about the reality and seriousness of climate change, they have spent considerably more on campaign contributions and lobbying to stymie efforts on Capitol Hill to combat climate change.

In the 2015-16 election cycle alone, for example, the five defendants in the San Francisco-Oakland climate case together spent $9.8 million on federal candidates and another $58.3 million to lobby Congress and the administration, according to government data collected by the Center for Responsive Politics.

Our three-branch system of government ostensibly rests on the concept of checks and balances. When Congress and the executive branch are hopelessly corrupted by petrodollars, it is incumbent upon the judiciary to compensate for this imbalance, which utterly fails to serve the public interest.

Fortunately, Judge Alsup's ruling is not the last word. Similar climate-damage lawsuits have been filed by cities and counties in California, Colorado, New York and Washington state.

A recent press statement by Union of Concerned Scientists President Ken Kimmell puts these lawsuits into perspective.

"In almost all large-impact litigation, the courtroom doors are usually shut in the beginning, but if plaintiffs are persistent and keep knocking, the doors will open up," said Kimmell, an attorney and former head of the Massachusetts Department of Environmental Protection. "This was true in the fights against Jim Crow and Big Tobacco, and we expect that the same tenacity will be necessary to overcome the entrenched political and economic influence of this deep-pocketed industry."

Elliott Negin is a senior writer in the Communications Department at the Union of Concerned Scientists.