The Next Millennial Trend Is Suing Big Oil for Destructive Climate Change

Over five years later, the aftermath of Hurricane Sandy is still being felt in New York City. The Build It Back program, created to help homeowners in flood zones reassemble their properties, continues to keep plenty of families waiting for relief. The coming L train shutdown in 2019, which VICE has been covering extensively, is necessary chiefly because of the damages the superstorm wrought on the Canarsie Tube underground. So far, the federal government has allocated upwards of $20 billion in recovery money, but the final price tag will likely rise as New York continues to rebuild and fortify its coastline.

But after a summer where the subway became a national spectacle of dysfunction and misery, the city is asking someone else to pay up: oil companies.

On Wednesday, Mayor Bill de Blasio announced that the city, in addition to (potentially) divesting $5 billion in pension funds, was taking take five oil companies—BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell—to court. NYC is seeking damages that, de Blasio and his fellow city officials claim, the oil giants caused by directly contributing to climate change. The city is also accusing the companies of privately being aware of the effects burning fossil fuels has on our planet for years while denying them in public. (Several of the defendants companies’ spokespersons have since touted their own efforts to address climate change, while either insisting lawsuits are not the answer and/or calling this specific one meritless.)

“As climate change continues to worsen, it’s up to the fossil fuel companies whose greed put us in this position to shoulder the cost of making New York safer and more resilient,” de Blasio said in a statement.

With the lawsuit, New York joins a growing number of cities whose leaders hope to use the court system to help pay costs imposed by extreme weather events. This is an especially appealing option at a time when key members of the Trump administration in Washington are denying climate science outright, pulling out of global accords, and backing away from enforcement of existing regulations. The charge regained traction last year, after Hurricanes Harvey, Irma, and Maria left Texas, Florida, and Puerto Rico with humanitarian crises worth billions of dollars in damages—and, some estimates suggest, over 1,000 lives.

The unfolding saga mirrors the successful lawsuits brought against Big Tobacco in the 1990s, and the more recent complaints against pharmaceutical companies for their role in the opioid crisis. But the question of whether or not it can actually enact profound change for a much more existential issue—one involving multi-billion dollar corporations active across the globe—is up for debate. VICE reached out to Jean Eggen, a distinguished professor emerita of law at Widener University Delaware Law School and a member of its Global Environmental and Natural Resources Law Institute. She’s also an expert on product liability and has written about tobacco litigation in the past.

Here’s what she had to say.

VICE: First and foremost, on what grounds can a lawsuit like this actually move forward?
Professor Jean Eggen: It’d be a public nuisance [complaint], because it's brought by a public entity. The argument is, there was a substantial interference with the right of the public. And that can be pretty much anything; it's very broad. It can be right of the public's health, welfare, comfort, etc. Typically, the relief that's sought, or given, is for the abatement of the nuisance—so, it'd be for the cost of whatever it took to fix it, or to force the company to fix it. But with this amount of time that's gone by, I assume that the city has expensed many sums with the most extreme and acute problems that come about as a result of it.

I read the complaint as claiming public nuisance generally, but probably relying on state common law. The "private nuisance" claim, on the other hand, applies as well. In contrast to public nuisance, private nuisance under state common law requires an unreasonable interference with a private person's use and enjoyment of his/her/their property. Under this definition, the City can bring a private nuisance claim for harm to the City's property, which is reflected in the complaint. So the City essentially is wearing two hats in this complaint: 1) suing in public nuisance on behalf of its citizens for an interference with public rights, and 2) suing in private nuisance on its own behalf for harm to the property it owns. There's nothing unusual about having this combination of nuisance claims when a public entity brings this kind of action, provided that there is harm to the City's own property to support the private nuisance claim.

The thing is, there are some preemption questions. The US Supreme Court has ruled that the federal Clean Air Act preempts any claims under federal common law. But the other side of that is, there are state tort claims for nuisance, including public nuisance. That seems to be more of an open question, as to whether the Clean Air Act would preempt those claims. And by preempt, it just means that you can't bring those claims—they'd get dismissed, because it falls under the auspices of the federal Clean Air Act.

So does New York have any specific state laws on the books that apply here?
There was a case with MTBE (methyl tertiary butyl ether), which is a gasoline additive, and it was product liability litigation. That had to do with the water supply in and around New York City, which had the leakage of the additive. (Editor's note: A dozen oil companies ultimately had to pay $423 million cash in damages, plus cleanup costs.) In that case, Judge Shira Scheindlin specifically ruled—and it went up to the [United States Court of Appeals for the Second Circuit], and was affirmed—that the state law claims, including public nuisance claims, would not be preempted, and the plaintiffs (the City and the various other groups) could go forward with those claims.

I know there were some arguments on the climate change issue of that sort out in California, in the [United States Court of Appeals for the Ninth Circuit], so I'd expect them to spend a lot of time on the state law claims. But the other thing about that MTBE case is that it involved a different federal statute—the Safe Drinking Water Act. So the question is, in New York, does that carry over to the Clean Air Act? I think there are pretty technical legal issues that may arise regarding preemption, but I would be very surprised if the New York courts would allow the state claims to be preempted. It'd have to go back to the US Supreme Court for them to make a decision on that.

With a gasoline chemical, it seems as if there was a more clear causation: the companies did this, and, as a result, a very tangible thing happened. However, this lawsuit in question has a bigger lift than that. Arguing that these companies are ushering in the destruction of our entire climate system is different than just leaking into the local water supply, right?
Definitely. Anything when it comes to the contribution of climate change, there's just a whole series of intervening steps. With toxic torts, we call that the "latency period," between what the defendant does and, in toxic torts, it's generally when the person is exposed, and down the line, may develop cancer from asbestos, or smoking, or something of that sort. The longer the latency period, the more likely that there are multiple intervening acts or causes that could bring a jury or a court to say that there's not enough of a connection there.

It's not enough to say, "Hey, what they did could contribute to climate change." [The city] could do that, but that's not enough. You have to show that it actually did in this particular instance, and that's what makes it so much more difficult in these.

All that said, what's the viability of a case like this?
These cases often drag on for a really long time, and one of the things I was thinking is that, at the time shortly after Sandy, there was talk that maybe the city wasn't prepared well enough, and that contributed to it. So you may have these kinds of defenses raised in court. It's very difficult to tell without all that information coming out.

Earlier this week, it was reported that Exxon was moving to sue the California officials responsible for their own lawsuit against oil companies, arguing that their’s was a political act, rather than a legitimate tortious claim. Is this something that could happen in New York?
It's a strategy, of course. It's just a litigation strategy, to try to get some leverage on the other side. But these things eventually sort out into whether or not they are legitimate claims, and they narrow way down to as to what those legitimate claims are. That always takes time.

The lawsuits against Big Tobacco ultimately led to a $200 billion settlement, and seemed to mark a new era in America’s view towards cigarettes, and the dangers of smoking. What's that precedent mean here?
Prior to that—and really, since then—the tobacco companies were just so adamant about fighting every single individual lawsuit separately. They would not cave on anything. And then, with the states' attorney generals, there were enough that got together to start pressuring them, and bringing their suits. Then [the tobacco companies] agreed to this master settlement that required something like 25 years of payments over time to the states, and the other states signed on to it.

In a way, I don't see that happening here. And it gets back to what you said about causation: how much more difficult the causation issue is, in terms of linking the damages directly to their activity. Whereas in smoking, by then, there were 40 years of studies showing that smoking caused these kinds of illnesses, and was a public health problem. The surgeon general had come out, and declared it a public health problem. And then we had a whole series of warnings on the cigarettes. So I think the causation was very strong in that instance, and I think it was just a business decision on the behalf of the industry to say, "Okay, this is probably, in the long run, going to be cheaper for us now." Even though it sounded like a lot of money, and it was a lot of money. But I'm not sure if the oil and gas industry is feeling that right now.

Could that ever happen with big oil? Could these companies ever actually be forced to change—or reach a strategic calculation to capitulate, in a way—as a result of these lawsuits?
I think we're at the beginning of these kinds of things. And [municipalities] have had some success with federal common-law cases. So I think, as with all business entities that face the potential for multiple litigations over the same course or type of conduct, that the oil companies are probably on a wait-and-see trajectory. See what happens in the courts, and if they have to answer for these; if it ends up that they have to answer a lot, then they may change their strategy. But I think right now, what you saw in California, where Exxon is trying to countersue, it shows that they're going to fight for the time being.

What peripheral effect could this lawsuit have on the fight against climate change nationwide?
Everyone has their statute of limitations, so parties, maybe other municipalities, wanting to bring lawsuits have a certain time to bring them. So depending on what those limitations are, that would be an outside limit on it. But in terms of getting a feel for what the judicial system thinks about these kinds of claims, it could really make a difference. And also, when you look at what we had in the fall—in Houston, Puerto Rico, and Florida—there could be some basis for legal claims arising out of that. Their time to bring those claims wouldn't necessarily be running until they had the problem. So with increased extreme climate events, I think there would be a lot of interest in this kind of litigation, to see if it's a route that municipalities can take.

This interview has been lightly edited and condensed for clarity.

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