New York City just filed suit in federal court against five multinational oil companies: ExxonMobil, Chevron, Conoco Phillips, BP, and Royal Dutch Shell. The goal? To get monetary damages for the harm New York has already suffered from climate change impacts — coastal erosion, increased flooding and higher temperatures — and help with paying for the necessary investments to protect against future harm.
New York’s theory is that these fossil fuel giants knowingly caused harm to people and property by promoting and selling their products. In going to court, the city joins a growing list of local governments seeking to force the “deep-pocketed” fossil-fuel corporations to pay for the harm resulting from increasing levels of carbon dioxide emissions in the atmosphere.
Success in the courtroom is by no means assured; there are many hurdles yet to overcome. Nonetheless, pursuit of the case signals that the battle has begun over one of the central issues arising from climate change: Who pays for the damage?
It’s not surprising that local governments have turned to the courts for relief. After all, as global surface temperatures continue to climb, the damages have continued to mount. The National Oceanic and Atmospheric Administration runs an annual tally on the amount of damages caused by billion-dollar climate change and weather disasters in the United States. For 2017, the total came to $306 billion — the highest figure ever reached. And because these damages occur on the local level, state and local governments shoulder much of the burden.
In its complaint, New York City makes explicit its intent to push the financial liability for climate change off its plate and onto oil companies’. It wants to “shift the costs of protecting the city from climate change impacts back onto the companies that have done nearly all they could to create this existential threat.”
The complaint tells a compelling story as to why: The defendants knew. They knew that fossil fuels contributed to climate change and they knew that climate change brought “gravely dangerous” consequences threatening catastrophic harm. They placed “company profits ahead of human safety, well-being, and property, and foisted onto the public the costs of abating and adapting to climate change.”
As compelling as this story may be, and as untenable as the accumulating costs may prove, it’s still very much an open question whether the city can win the case on the merits. When confronted by similar claims, some courts have concluded that, at its core, the issue of how to deal with climate change is for the political branches of government to resolve.
The defendants will undoubtedly also challenge the causes of action chosen by New York — what’s known in legal circles as public/private nuisance and trespass. To date, courts have generally not allowed climate-related lawsuits to go forward under these theories — for judges it can seem akin to trying to jam a square peg into a round hole.
The defendants will most likely also assert that there is simply too much uncertainty to attribute fault or determine harm, that they are responsible for at most only a small fraction of any damage to New York, and that blame should fall on consumers who used fossil fuels to power their businesses, homes and cars.
Those arguments may well prove persuasive in court.
Then there’s the question of timing. Mayor de Blasio likened the city’s lawsuit against the fossil-fuel companies to the legal fight to hold tobacco companies liable for the harm caused by smoking.
But remember: It took decades worth of lawsuits before a smoker won a verdict. In a case this significant, with extraordinarily high stakes and well-funded lawyers on both sides, there is plenty of room for legal maneuvers, hardball and delay.
Even if New York City’s lawsuit drags out, even if it ultimately proves unsuccessful, it will have served an important purpose: It has already prompted more robust discussion on the critical topic of who and how we pay for the damage caused by climate change impacts. Shortly after New York City filed its complaint, several Los Angeles City council members announced they wanted to get into the act.
As the impacts of climate change spread, so will the litigation.
Hill is a research fellow at the Hoover Institution. She most recently served as special assistant to President Obama and senior director for resilience policy at the National Security Council.