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The Plot to Sink the Oilmen

How two city attorneys are trying to stick Big Oil with the bill for a changing climate.

 

Read more from the Power Issue here.

In 2011, a Mountain View man named Kiel Sturm sued the world. The case, Sturm v. The World, was filed in district court in San Jose. In it, Sturm stated that “defendant, The World, is a horrible place to live and do business.” His request for relief included claims of more than $1 trillion.

Judge Lucy Koh eventually dismissed Sturm’s case. Among other complications, he lacked standing to take on “The World,” which, as Koh drily wrote, “is not a person or entity that can be sued.”

In September of this year, San Francisco city attorney Dennis Herrera and his Oakland counterpart, Barbara J. Parker, filed suits not against the world, but in defense of it. In separate but intertwined actions, Herrera and Parker targeted the world’s five largest investor-owned fossil fuel producers—Chevron, ConocoPhillips, ExxonMobil, BP, and Royal Dutch Shell. That’s a much narrower scope than, say, The World. But the suit may be nearly as quixotic. If successful, Herrera and Parker will not only change the landscapes of American law and business, they’ll literally change the landscape, forcing the globe’s biggest contributors to climate change to make significant, if not crippling, reparations to coastal municipalities.

That’s a big if. San Francisco’s and Oakland’s cases may founder for the same reason that Sturm’s did: an inability to prove that the cities have been directly harmed by the actions of the defendants. The city attorneys allege that Big Oil has known for decades of the calamitous environmental consequences of using its products, but has continued to market and sell them while engaging in an organized campaign to mislead the public about the realities of climate change. As a result, San Francisco’s waterfront will, in the coming years, be inundated by sea-level rise, and Oakland’s airport will be underwater.

Mitigating those damages will cost the cities a mint, and Herrera and Parker are fighting to charge those future expenses to Big Oil. “The bill is coming due,” Herrera says. To collect, San Francisco and Oakland are pushing for an “abatement fund,” akin to the billion-dollar one San Francisco extracted from lead paint manufacturers in 2013.

This is, to put it mildly, not a normal case for a city attorney’s office, which concerns itself mostly with defending city policies and advising elected officials. For decades, however, San Francisco’s lawyers have cultivated a reputation for “proactivity”—taking on, and beating, cigarette companies, payday lenders, alcoholic beverage purveyors, insurance companies, and the aforementioned lead paint manufacturers. (The city attorney has also tried, less successfully, to sue firearms manufacturers.) San Francisco sued Enron in 2001 and, this year, took aim at the security-breached data giant Equifax.

In short, in the battle against corporate Goliaths, San Francisco is David, albeit with a really killer slingshot. Doubly so when you consider the politics: It’s a safe bet that the Bay Area’s mostly liberal voters appreciate taking on some of the world’s least sympathetic defendants. It also helps Herrera and Parker that their suits make very clear the horrifying and dire consequences of oncoming climate change. By 2050, “100-year” floods will occur in San Francisco every year, the attorneys claim, citing scientific research on the amplification of flood frequencies. By 2100, Herrera’s suit predicts, such flooding will occur twice a week. Neither suit names an exact dollar amount that will remedy this situation. But both Herrera and Parker inadvertently borrow from Carl Sagan in noting that it’ll cost “billions and billions.”

The problem for the city attorneys is that the Ferry Building and Oakland International Airport won’t be the only victims of the deluge. Global warming is, by definition, global. The courts, notes David Dana, a law professor at Northwestern University, tend to search for a “discrete and traceable injury.” But that’s not what San Francisco’s and Oakland’s suits present. Nor are the oil companies the only culprits. Tracing these cities’ woes to the actions of the five named companies—and not to companies burning coal or natural gas, say, or motorists in China and India—figures to be an epic exercise in legal dodgeball. “The fuel companies are going to say, ‘Who, me?’” predicts UC Hastings law school professor David Levine. “You’ll never be able to pin down what percentage of the problem is due to them.”

Oil companies, Levine notes, drill fossil fuel and sell fossil fuel. They don’t burn it: Consumers mostly do that. “What about [a suit against] the auto industry? What about all the people who bought those internal combustion engines? What about a suit that is, essentially, against everyone who’s living on the grid, who contributed to this?”

Plus, should San Francisco and Oakland prevail—inevitably triggering a litany of similar lawsuits by other municipalities— it would be nothing short of an existential crisis for the petroleum industry. That will likely give judges a great deal of pause as they consider the possible consequences of the case. To that prospect, Herrera and Parker have only one response: Tough. “It’s not for us to be concerned about the existential threat to the companies,” Parker says. “What they’re doing is an existential threat to humankind.”

 

It is, when you think about it, a bit odd to relegate climate change—a meteor-caliber threat to life on earth—to the status of mere “public nuisance.” But that is exactly what Herrera’s and Parker’s suits claim the industry is creating. In fact, the use of public nuisance law by the government to battle polluters is common and long-standing. In 1907, the Supreme Court found in favor of the State of Georgia when it argued that the Tennessee Copper Company had created a public nuisance via the sulfur dioxide wafting out of its smelters and damaging farms and forests in the Peach State.

It was also public nuisance litigation that led to the Tobacco Master Settlement Agreement in 1998, which bled cigarette companies of hundreds of billions of dollars. And it was public nuisance litigation that resulted in 10 California counties (including San Francisco and Alameda) winning a $1.1 billion verdict against lead paint makers. Herrera likens the current case to both of the above; his lawsuit even has a section titled “Defendants Borrowed the Big Tobacco Playbook In Order to Promote Their Products.”

Legal experts, however, do not necessarily agree with that comparison. In cases like Georgia v. Tennessee Copper Company, you have what Dana refers to as a “binary pollution dispute”: Smokestack A leads to environmental degradation B. Climate change, however, is anything but binary. “This is not a localized problem,” Dana says. “This is not a plant belching smoke.” In the lead paint case, the court found three manufacturers to be “liable for the harm that they created.” Two other companies, however, eluded the judge’s ruling. These companies also manufactured vast quantities of harmful lead paint. But, crucially, neither could be definitively pinned down as having knowingly sold dangerous lead paint or promoted its use in California.

Herrera’s and Parker’s shotgun blasts at the oil companies may suffer from the same problem. Chevron and Shell certainly have some connection to the series of events that will inundate the Embarcadero with bay water. But so do lots of entities: steam trains, natural gas power plants, flatulent cows, etc. “This is part of a litigation phenomenon,” assesses Georgia State law professor Timothy Lytton, who has extensively analyzed the shaping of public policy via tort law. A number of public nuisance suits, he notes, have been directed against climate change–related harms. But few have advanced very far. “The primary difficulty is proving any sort of causation,” he says. “Is it possible to prove a particular company materially contributed to the climate change harming a locality?”

Without question, Levine adds, the case against Big Oil is not as damning as the case against Big Tobacco. Oil execs all but certainly knew long ago that they were marketing a harmful product while discrediting the science characterizing it as such. But Big Tobacco barons did worse: Not only were they aware of the dangers of cigarettes while claiming not to be, but they also deliberately here’s a cartoon I once saw adorning the office of a San Francisco judge. It depicted a bewigged justice staring imperiously at an attorney below. “Nice argument,” read the caption, “but you lose.”

Among many legal experts, this case induces the same reaction. “I admire the creativity of the city attorney,” says UC Hastings professor and trial attorney Shanin Specter. But he quickly rattles off four hurdles facing San Francisco and Oakland:

• Most of the alleged harm will occur in the future and has not yet come to pass.

• The court must determine that the harm of the alleged public nuisance outweighs the benefits accrued (i.e., that we’ve been harmed by oil more than we’ve benefited from it).

• Courts usually shy away from issues considered “political questions best left to regulators or legislatures.”

• “A court may be concerned that to achieve an abatement of the nuisance, they would have to essentially manage the oil industry.” Big Oil, in other words, may be too big to fail.

But, several attorneys noted, the cities can win this case without actually “winning.” If the city attorneys manage to convince a judge that San Francisco and Oakland have legal standing to fi le this suit, they could advance to the discovery stage—meaning that Herrera and Parker could demand and sift through troves of private oil industry documents and uncover God knows what. “You can have an impact without winning the suit,” Lytton says. “Not more than half a dozen of the lawsuits against the Catholic Church for clergy sexual abuse made it to a jury, and the vast majority were dismissed due to the statute of limitations. But the impact has been extraordinary and still reverberates globally.”

For now, Parker and Herrera say they’re in it to win it. “If other benefits come out of our litigation, that’s an added bonus,” Herrera says. “We’re focused on winning our case and ensuring taxpayers aren’t forced to foot the bill.”

If past public nuisance cases are an indicator, this is likely to be a lengthy battle. Many years may pass before a winner is decided. And all along, if the suit’s contentions are correct, the waters will continue to rise.

 

Originally published in the December issue of San Francisco

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