In 2015 an investigation by the Los Angeles Times and Columbia Graduate School of Journalism partially closed that gap, showing that oil companies like Exxon had acknowledged the planetary risks of their products as early as the 1980s. Attorneys general started asking questions. The oil companies said they saw malfeasance in all this, and it’s true that some of the same lawyers involved in those ideas back then are serving as outside counsel for the cities that have filed the recent lawsuits.Whether you see all that as a conspiracy of business-hating leftists or the origins of a world-saving plan might depend on your political and scientific proclivities. But the climate for climate action has also changed. “What the cities would say is that cities have started to experience the impacts of climate change in ways they haven’t previously,” says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. Sea level rise, drought/fire/storm/slide cycles, hurricane damage… “there’s real money that the cities are putting forward to deal with this,” Burger says.
Scientific attribution of blame for all that—ascribing portions of disasters to climate change, and ascribing portions of climate change to particular companies—is very much at the center of these lawsuits. Allen’s 2003 idea has evolved into extraordinarily specific work, like a 2017
paper that linked two-thirds of present day global temperature rise and sea level rise to 90 fuel companies, and 6 percent of sea level rise points straight back at Exxon, Chevron, and BP.
“One of the core cross-cutting issues here is whether or not courts are the right place to make a decision about who’s responsible for the harms from climate change, given the number of people involved in creating the problem.”
One of the papers’ authors, Peter Frumhoff, chief climate scientist at the Union of Concerned Scientists, was also at the La Jolla meeting. And he was at a press conference in advance of Thursday’s hearing. “Cities and communities need to be preparing for further sea level rise and the damage associated with storm surge and flooding, and there are real costs associated with that,” Frumhoff said. “In my view, and I’m not speaking as a scientist but as a citizen, it’s also appropriate to be asking why taxpayers alone should be paying those costs.”
(In a “tutorial” on climate change held by the same circuit court judge who heard the motion to dismiss Thursday, the lead lawyer for Chevron acknowledged the science that says human beings are causing climate change by burning carbon-based fuels. He denied that was the fault of the companies that legally extracted and refined the stuff.)
The really big question about whether a city can sue an oil company for climate change isn’t the climate change part. It’s the “sue” part. A large portion of the oil companies’ motion to dismiss, the subject of the hearing on Thursday, argued that courts weren’t allowed to rule on whether something was a nuisance—the substance of the lawsuits—if that something is already regulated by a federal law.
Which, in this case, is the Clean Air Act. (Ironically, the Trump administration is threatening to upend the law, so it’s hard to know how to think about this logic.) “One of the core cross-cutting issues here is whether or not courts are the right place to make a decision about who’s responsible for the harms from climate change, given the number of people involved in creating the problem,” Burger says. “This is a political question—that tort law is not an appropriate vehicle, that congress and the executive branch are far better situated because it’s an international and global problem and requires a coherent nationwide response.”