In Brief:
- Extreme climate events are bringing significant damage and costs to communities.
- A growing number of jurisdictions are filing lawsuits against oil companies, alleging that emissions from their products have caused these events.
- An attorney representing one of these plaintiffs spoke with Governing about the rights of governments to initiate such suits and what it might take for them to prevail.
Nearly 30 lawsuits from state, local and tribal governments have been filed against companies that produce and distribute fossil fuel products (some suits represent complaints from multiple plaintiffs). The legal complaints arising from their allegations range from public nuisance and negligence to failure to warn, design defect and trespass.
Attorney Jeffrey B. Simon is co-lead counsel for one of these cases, representing Multnomah County, Ore., in a case against ExxonMobil, Shell, Chevron, BP, ConocoPhillips, as well as industry trade groups and consultants. The county is seeking redress for damages it suffered from a heat dome that developed over the Pacific Northwest in June 2021, when temperatures rose as high as 116 degrees over a period of several days — 40 degrees above the average for the county. High heat killed at least 69 people, county officials say, and caused extensive property damage.
The plaintiffs believe they have evidence that this could only have occurred as a consequence of warming precipitated by fossil fuel emissions. Simon, who has had success in litigation against companies that manufacture and distribute opioid painkillers, believes the evidence is strong enough to stand the test of a jury trial.
Simon’s practice has evolved over the years to focus on representing governmental entities in cases where widespread harm has been caused by what they allege to be significant corporate misconduct. He’s written a book about their constitutional right to initiate such civil actions, Last Rights: The Fight to Save the 7th Amendment, a right that he considers to be in jeopardy.
In a conversation with Governing, Simon talks about the legal foundation for cases around extreme climate events and what might be required for them to succeed.
What are the precedents for government lawsuits against fossil fuel companies?
There is a long history in our civil jurisprudence of communities trying to hold industries and companies within them financially accountable for harm done to them, their environment and their welfare from alleged disinformation.
This starts with tobacco litigation, right through to opioid litigation. The through line between those cases and this case is the use of public nuisance, a long-standing cause of action where governmental entities can bring claims for public harm on behalf of the public. Climate cases generally arise out of that line of jurisprudence.
Have you been involved in cases similar to the one in Multnomah County?
My partners and associates in our firm, along with our co-counsel, have represented political subdivisions, principally counties, in opioid litigation for many years. These are cases against prescription opioid manufacturers, wholesale distributors and large retail pharmacies for what we allege to be their misconduct in glutting communities with large numbers and high doses of prescription opioids well beyond any therapeutic benefit, which resulted in the modern opioid epidemic.
It seems straightforward to connect the dots between a painkiller pill and harm to a person. Is the science strong enough to connect emissions, warming and community impacts in court?
I certainly would never underestimate the wealth, power and other resources of the biggest oil producers in the world, nor the talent and resources of the lawyers they hire to defend them in claims like this.
Having said that, the science that links fossil fuel carbon pollution into the atmosphere and the extreme heat event that struck Multnomah County in the summer of 2021 and caused so much harm, both in terms of life and treasure, is very strong. It’s very well documented in peer-reviewed, published scientific literature how extreme and anomalous that heat event was — hotter than it's ever been in that part of the world in human history.
There’s a study that concluded this would have been virtually impossible in the absence of carbon pollution from fossil fuel burning. Another one said that, compared to a counterfactual world [one without carbon emissions], carbon pollution made that event 150 times more likely to occur.
Could the case lead to a settlement rather than a trial?
That's all to be determined. We're prosecuting the case to try it to a jury. The defendants are certainly going to try to create all kinds of legal obstacles to our ability to do that, but we believe that the judgment of a jury will best render justice.
State, county and city governments have already filed nearly 30 lawsuits seeking damages from oil companies. How much more of this might there be as we continue to experience unprecedented climate events?
Because we're continuing to burn fossil fuels at a high rate and therefore polluting the atmosphere at a high rate, we're going to see increasing harms.
When you're talking about extreme heat or extreme cold in otherwise temperate climates, those are the most certain events for which attribution scientists can establish a link to carbon pollution. It may be the case that theatmospheric rivers that California and other parts of the country are experiencing will be linked to warming by attribution scientists.
There will be more events which give rise to questions about whether there is a legal remedy, but how many and brought by whom? Time will tell.
How does your interest in the Seventh Amendment come into play in your involvement in these kinds of cases?
There are certain polluting industries, or industries that sell defective or harmful products, that look to undermine the civil justice system, to weaken it, to immunize themselves using their political influence. This is not just a great danger, it is a denial of a fundamental constitutional right — the Seventh Amendment, the right to trial by jury not just in criminal cases, but in civil disputes.
We are allowing that right to be subverted in plain sight, and that, we should stop. When you allow that to happen, you allow harm to happen to people and to communities with legal impunity. That's a bad idea.
The civil justice system is essential to protecting the public from harm caused by corporate misconduct on a wide scale. Governmental entities don't just have the right, they often have the duty, to use the civil justice system on behalf of their residents.
They are doing so, thank goodness.
