CA-Wildfire-09,” by Jeff Head

April 18, 2018; New York Times

Climate change discussions are often focused on rising seas, which involves states on the coast such as cities and counties in New York and California, but a new lawsuit argues that the changes in the climate have exacerbated wildfires, severe storms, drought and floods in the middle of the country, far from rising waters.

The municipalities along the coasts that have sued fossil fuel companies are now joined by Boulder, Colorado, as well as Boulder and San Miguel Counties. The lawsuit, filed in state court, does not ask for a specific amount yet. It contends that Suncor Energy USA, Suncor Energy Sales, and ExxonMobil Canada are responsible for “billions of tons of the excess greenhouse gas emissions in the atmosphere,” and “by hiding what they knew about, and affirmatively misrepresenting the dangers of unabated fossil fuel use, the defendants protected fossil fuel demand, and obstructed the changes needed to prevent or at least minimize the impacts of climate change.”

The plaintiffs will be represented pro bono by the nonprofit EarthRights International along with its litigation partners. EarthRights, according to their mission statement, “combines the power of law and the power of people in defense of human rights and the environment.” A though based in Washington, D.C., it works globally.

The effects of climate change, especially on agriculture and tourism in Colorado, have pushed the plaintiffs and EarthRights to take on the fossil fuel corporations named in the suit. Boulder’s mayor, Suzanne Jones, stated during the announcement of the lawsuit, “Our communities and our taxpayers should not shoulder the cost of climate change adaptation alone. These oil companies need to pay their fair share.”

Colorado communities are prepared for a prolonged fight. ExxonMobil and others have made it a practice to countersue. (We’ve covered this a great deal.) Last week, a lawsuit by ExxonMobil to stop a probe by the attorneys general of New York and Massachusetts was dismissed by a federal judge with prejudice. ExxonMobil will not be able to try again to stop the probe, which is looking into the corporation’s possible coverup of knowledge of climate change, including misleading their investors and the general public.

In a turn of the table, ExxonMobil has used that same focus in a countersuit to subpoena California officials and lawyers. It alleges that the municipality is defrauding municipal bond investors by not revealing the climate change risks, which is the basis of the California suit against ExxonMobil. Exxon, which has acknowledged climate change exists and supports the Paris Climate Agreement, has already said that it would support a carbon tax. Still, the lawsuits build, back and forth, coast to coast.

Climate change lawsuits, whether on the coast or inland, are using the area of private nuisance, where the defendant has allegedly created an impediment to the use of one’s property. The use of state law follows the unsuccessful challenges at the federal level.

Attempts at the federal-court level to use nuisance in climate change litigation, in cases such as American Electric Power v. Connecticut, have been unsuccessful. In a unanimous 2011 decision, the Supreme Court said that the Clean Air Act displaced the federal common law of nuisance, leaving enforcement and regulation to the Environmental Protection Agency.

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, said, while there are legal foundations for the states’ arguments, “The lawsuits are, without question, pushing the envelope of nuisance law and tort law.”

Jerry Taylor, the president of the Niskanen Center, libertarian think tank with an environmental priority, based in Washington, D.C., presented the view from the conservative side, agreeing that lawsuits are the way to go and that it is better to deal with climate change as a property rights issue instead of requiring more regulations.

Serge Dedina, the mayor of Imperial Beach, Calif., who brought one of the first suits, said he expected more pressure to come from companies like [ExxonMobil.] “They’re really good at that,” he said. “If ExxonMobil spent as much time cleaning up their operations as they do fighting people who are trying to protect the planet, we’d be a lot better off.”

Colorado has requested a trial. As the climate change affects both ends and the center of the country, we watch as its effects play through the courts of each state.—Marian Conway