City attorneys from Oakland and San Francisco are suing five of the largest oil and gas companies, alleging they knowingly contributed to global warming by producing and promoting the use of fossil fuels. The Oakland attorneys are seeking payment in the form of an abatement fund from the oil companies that would go towards building infrastructures that would protect residents from the effects of global warming.
The Oakland attorneys claim in the suit that the primary source of global warming is fossil fuels, which the oil companies have massively produced over the years, despite internal industry documents produced since the late 1970s indicating that company executives knew of the harmful effects. The attorneys are not seeking to hold the oil companies responsible for “their direct emissions of greenhouse gases” or to restrain them from future business operations. Instead, they are attempting, as the suit claims, to place “the costs of abating sea level rise harm—one of global warming’s gravest harms—back on the companies.”
Oakland City Attorney Barbara J. Parker and her San Francisco counterpart, Dennis Herrera, announced their respective suits against BP, Chevron, ConocoPhillips, Exxon and Shell during a Wednesday news conference at Brannan Street Wharf Park in San Francisco. During the conference, Parker stressed the urgency of the matter. “Our future is dire,” she said. “Where we are standing right now likely will be underwater by the end of this century, if not sooner.”
Attorneys in the suit point to a recent report by the State of California Ocean Protection Council that projects under the extreme climate model, called the H++ scenario, that sea level rise in San Francisco by 10 feet by the end of the century.
The suit states that the Oakland International Airport is 5.6 feet above sea level, which means it would be one of the first city infrastructures to fall victim to rising sea levels.
If sea level did increase on that projected scale, the attorneys argue, Oakland residents would expect to face overflowing sewers, storm surges and flooding. The costs for building sea walls, raising property elevations and the building of other infrastructures to protect residents from those threats, the suit argues, would be “staggering.” A five-year Local Hazard Mitigation Plan adopted by Oakland representatives in 2016 put the cost of property replacement for projected sea level rise between $22 and $38 billion.
The city attorneys have not asked for a set amount from the oil companies. Instead, the suit argues that it “will, upon information and belief, cost billions of dollars.”
According to the text of the suit, the potential harms to Oakland residents be most severely felt by low-income groups who tend to live at lower elevations. “Of the city of Oakland population that lives on land within three vertical feet of the current local high tide line, more than 70% have been categorized as having high ‘social vulnerability,’” states the suit.
Parker fears that these people will pay the price of the oil companies’ business. “This is about the tens of thousands of people who live in these neighborhoods,” Parker said at the news conference, singling out East Oakland, West Oakland and downtown as neighborhoods that would be most vulnerable to storm surges and rising sea levels.
The timeliness of the suit during catastrophic natural disasters—hurricanes in the Gulf and Atlantic and a devastating earthquake in Mexico—is also not lost on Parker. She said it has underscored her sense of urgency in moving the suit through litigation. “Every day as we watch the news, we’re staggered by one catastrophe after another,” Parker said, speaking by phone Wednesday night.
Rand Wrobel, the communications coordinator for the climate action group 350 Bay Area, said by phone Thursday that the suit was a “great thing” and that “it’s actually overdue.”
“It’s a step in the right direction,” he said. “We need to raise awareness that this is a crisis that could have been avoided.”
Representatives of several of the companies named in the suit did not respond to interview requests by press time.
Daren Beaudo, spokesperson for ConocoPhillips wrote in an email that ConocoPhillips does not comment on pending litigation. “If you want to see our views on climate change please visit ConocoPhillips.com,” he wrote.
In a statement from Richmond-based Chevron, spokesperson Melissa Ritchie wrote, “Chevron welcomes serious attempts to address the issue of climate change, but these suits do not do that. Reducing greenhouse gas emissions is a global issue that requires global engagement and action.”
Parker’s suit does not contain language that directly asks for the reduction of greenhouse gas emissions from the companies.
Parker called responses like these “sort of a distraction.”
“Had they taken action when they first learned these problems,” continued Parker, “there might have been opportunity for us to avoid the catastrophes we are facing now.”
The Oakland attorneys filed their suit using a California public nuisance law. Under this law, the Oakland City Attorney, acting for the people of the state, can ask the courts to halt and seek damages for a nuisance that is harming the health of an entire community. In this complaint, the attorneys allege that the public nuisance is “global warming-induced sea level rise” and the oil companies are responsible for creating it by producing and promoting fossil fuels. Parker argues in the suit that scientific research supports the idea that fossil fuels cause global warming and that Oakland will face “serious climate injuries that will require billions in expenditures to abate the global warming nuisance.”
This lawsuit comes on the heels of comparable suits filed in July by attorneys from San Mateo, Marin County and the City of Imperial Beach. “We are heartened to see San Francisco and Oakland join the fight on this important issue,” wrote County of Marin counsel Brian Washington in a statement on Wednesday.
“Both suits are seeking to argue that the greenhouse gases produced a public nuisance that needs to be abated,” Washington said speaking over the phone Thursday. “Very similar lawsuit, very similar themes.”
These suits, however, are not the first climate litigation in the United States. According to a United Nations 2017 global review of climate change litigation, US attorneys have filed 654 climate suits as of March 2017. But none have successfully established that “emitters” have caused the plaintiffs’ injuries, reads the review.
For instance, in Kivalina v. ExxonMobil, attorneys representing the native village of Kivalina, Alaska and the city of Kivalina alleged that because of global warming, the residents would have to move, because Arctic sea ice that protected them from winter storms was melting. The attorneys pursued 24 oil, energy and utility companies in a federal common law claim of a nuisance suit. The companies were accused of contributing to the emission of carbon dioxide, a gas that traps heat in the atmosphere and is expelled by burning fossil fuels. The Kivalina attorneys claimed that caused global warming, which melted the sea ice.
But the United States District Court of Appeals, Northern District of California, Oakland division threw out the case, stating that the issue was political and not up to the courts. The United States Court of Appeals ruled that the issue was best left to the Environmental Protection Agency. The US Supreme Court justices decided not to hear the case.
The difference between Kivalina v. ExxonMobil and Parker and Washington’s suits are that the latter are filed at the state level, rather than the federal level and California has a strong public nuisance law.
The oil companies named in Washington’s suit have already attempted to move it to federal court. Washington said that he and his fellow attorneys will fight to keep it in the state.
Washington also said that a big difference in their suit as compared to past ones is that the research showing that greenhouse gases are causing global warming is stronger than what it was a few years ago. “The scientific peer-reviewed studies are getting stronger and stronger,” he said. And scientists are better able to “link specific amounts of greenhouse gas emissions directly to sea level rise.”
Parker said she thinks that previous suits have been too broad, adding additional clauses of action that Washington admits can give defendants more opportunities to poke holes. “Our case is different,” Parker said. “We’re not trying to stop them from selling fossil fuels, although we think it would be advisable they move in that direction. We’re simply asking for them to pay for the harm they have already caused.”
She calls the city’s suit “clear” and “straightforward” because she only has to prove that the oil companies made the product (fossil fuels) that is causing a public nuisance (climate change) and did so while knowing the harmful effects.
Parker aims to prove that the companies knew their products were harmful by using internal documents discovered in a 2015 investigation by the Los Angeles Times and the Energy and Environmental Reporting Project at the Columbia Graduate School of Journalism. This group found that Exxon Mobil had been briefed by internal scientists on the harmful effects of fossil fuels.
Parker’s complaint includes one uncovered document, a 1982 “Memo for Exxon management” from Exxon’s Environmental Affairs Program Manager M.B. Glaser, detailing the effects of carbon dioxide (CO2). The accompanying graph shows a projected change in global mean temperature by the year 2100. This graph predicts that the “CO2 effect” increases three degrees Celsius more than it would with only “natural fluctuations.” The memo is “restricted to Exxon personnel.”
The memo is important to Parker because she claims in the suit that it shows that Exxon executives were aware that “substantial climate changes” could occur if fossil fuel use was not reduced. The suit claims that this shows that the company attempted to keep these documents out of the public eye. Through evidence such as this memo, Parker said she will attempt to establish liability by proving that the oil companies promoted their products “using deception.”
She also claims in the suit that the oil companies have continued to produce “massive quantities of fossil fuels” even when “global warming has become gravely dangerous.” A 2015 graph included in the Oakland suit compares the amount of greenhouse gas emissions recommended by the International Energy Agency (IEA) to curb a two-degree Celsius increase to BP, Exxon and Shell’s emissions projections. BP’s 2035 projections—which are used for long-term business plans—were nearly double the IEA’s. The graph “demonstrates the grave indifference Defendants BP, Shell and Exxon have for human safety and welfare,” the suit reads.
Attorneys also allege in the suit that the oil companies “borrowed the Big Tobacco playbook in order to promote their products.” According to the suit, Global Climate Coalition (GCC), a group funded by oil companies, either directly or through the American Petroleum Industry (API), sent a video to journalists that claimed “that carbon dioxide emissions would increase crop production and feed the hungry people of the world.” But the suit also alleges that internal GCC documents stated that their climate theories were unfounded.
Both examples will be used by Parker in her attempt to prove that the public nuisances created by the oil companies were known by the company officers.
An initial case management conference for the suit is set for October 31.
“We’re hoping to move this case along as rapidly as possible,” said Parker. “I don’t want to live underwater.”