Tort law in US climate litigation

Webinars can provide a high impact/low carbon footprint way of learning. The current pandemic makes them all the more useful. I will regularly feature a few that I attend, highlighting organizers who pack the most learning per hour for me.

This week the Center for Progressive Reform spotlighted US state tort law’s role in holding the fossil fuel industry accountable for climate change harms. Panelists included Noah Oppenheim of the Pacific Coast Federation of Fishermen’s Associations, Karen Sokol of Loyola University New Orleans College of Law, and Alexandra Klass of the University of Minnesota Law School (my alma mater: Go Golden Gophers). Collectively they describe how this kind of climate change litigation uses run-of-the-mill tort law to hold people responsible for behavior that breaches social norms and harms others. In this way, it can be seen as but one kind of climate change policy tool, along with legislated carbon taxes, tax departments’ renewable energy credit incentives, and international cooperation.

Noah highlighted the latest research on climate change impacts on fisheries and how it both compels and supports the lawsuit brought by members of the Pacific fishing industry. Karen described recent developments in state climate tort actions more broadly and put them in the context of other domestic and international climate litigation. Noting the current prevalence of coastal US lawsuits, Alexandra analyzed the potential for climate lawsuits in midwestern states. You can watch the webinar here.

A few of my takeaways:

  • As recounted by Noah, the logic of Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp follows the traditional 4-part path of a negligence suit: a defendant (actually a boat load of large petroleum companies – bad pun intended) alleged to have breached a duty of care (knowingly creating products that produced GHGs and led to ocean warming) to commercial fishers who have experienced financial harm (closing of Dungeness crab fisheries) caused by this breach (warm oceans produce a toxin that ends up in crab tissues that keep people from eating them and fishers not being able to catch and sell them).
    • Interestingly, the case’s five causes of action extend beyond a general claim of negligence to strict liability for failure to warn and for design defect, negligent failure to warn, and nuisance. 
    • In addition to compensatory damages (the most typical relief sought in tort suits), the Federation seeks equitable relief like abatement of the nuisance (meaning GHG mitigation), and punitive damages and disgorgement of profits.
    • The case was filed in California state court in 2018, but defendants are seeking removal to federal court. These preliminary motions are pending.
  • Karen pointed out that all other state torts suits in the US have been brought by state and local governments. They too allege beyond negligence to strict liability forms and nuisance, and point to specific climate change harms that can be monetized.
    • Plaintiffs include counties (San Mateo, CA; Boulder, CO; King, WA; and Santa Cruz, CA), cities (Baltimore, NYC, Oakland), and states (Rhode Island, Hawaii).
    • The Baltimore case made headlines on March 6 when the Fourth Circuit Court of Appeals ruled unanimously that it belongs in state, not federal court. The decision permits the state tort actions to go forward to trial, most importantly to discovery. While not binding on the other federal circuits with removal motions pending, it is anticipated to be influential.
    • Per the Baltimore City Solicitor: “We look forward to having a jury hear the facts about the fossil fuel companies’ decades-long campaign of deception and their attempt to make Baltimore’s residents, workers, and businesses pay for all the climate damage they’ve knowingly caused.”
  • Alexandra opined that the nature of climate change impacts and local politics may have delayed midwestern state and local governments from bringing state tort actions.
    • The damages are different than in coastal areas, e.g. arising from river flooding, affecting wastewater treatment, agriculture, as well as real and personal property.
    • Although the midwest is viewed as more conservative politically, midwestern attorneys general have signed on to climate change suits as amici.
    • Minnesota has a very strong consumer protection laws and brought its own tobacco suit in the 1990s, going to trial and settling during jury deliberation for $6.6 billion.
    • Parallels for these climate change tort actions can be drawn from the tobacco litigation based on public nuisance, and the recent opioid cases brought in Ohio and Oklahoma.

All three expect more cases to be filed in state courts, as decisions on procedural questions like removal are decided in this first wave. While most plaintiffs will be cities and counties due to their more like-minded views on climate change, Virginia was predicted as the next state plaintiff. Several referred to CPR’s State Courts and the Fight for Equity and Grantham’s 2019 snapshot of Global Trends in Climate Change Litigation.

Either explicitly or implicitly, all three speakers relied on two key databases for tracking climate change litigation in the US and globally. I do to too and encourage you to explore them.

  1. the “climate case chart,” originally created by Arnold & Porter and now jointly maintained with the Sabin Center for Climate Change Law at Columbia University (the common denominator being Michael Gerrard)
  2. the “climate change laws of the world,” published by the Grantham Research Institute on Climate Change and the Environment originally in partnership with GLOBE (the common denominator being Sir Nicholas Stern).

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