In a Court of Law, the Truth Hurts — And the Climate Polluters Will Pay for It

by Alyssa Johl

April 10, 2018

Climate lawsuits across the globe are heating up — shining a spotlight on the dirty oil and gas industry that is at a loss for how to defend its history of climate deception.

Hurricane Harvey Aerials. ExxonMobile storage tanks sit in flood waters nearly a week after Hurricane Harvey hit the Texas area. The human impacts of Hurricane Harvey have been staggering, and the greatest concern is for the people struggling in its aftermath. This disaster makes clear once again that coastal Texas and the wider Gulf region are on the frontlines of sea level rise and extreme weather heightened by climate change, as well as the toxic impacts from fossil fuel infrastructure.

Last week was a good week in our global efforts to hold the fossil fuel industry to account. Let’s do a quick run-down, shall we?

  • The Dutch NGO, Milieudefensie, gave notice of its intent to sue Shell if the company fails to align its business model with the Paris Agreement’s climate goals.
  • Powerful new revelations came to light providing further evidence of what Mobil (now Exxon) and Shell knew about climate change and when they knew it.
  • BP, ConocoPhillips, Exxon, and Shell all acknowledged the scientific consensus on climate science (IPCC assessments) in a U.S. court.  
  • And let’s not forget the week before, when a U.S. judge denied Exxon’s attempt to shut down two state investigations into the company’s alleged climate fraud.

These developments are part of a growing movement of climate cases — in the U.S. and around the world — seeking to hold climate polluters accountable for their contributions to the climate crisis. One of the recent lawsuits — brought by San Francisco and Oakland against five major fossil fuel companies (Exxon, BP, Chevron, ConocoPhillips, and Shell) — demands that the companies pay for the infrastructure necessary to protect people and property from the harm caused by sea level rise. Currently, sea level rise puts up to $49 billion in public and private property in San Francisco, and $38 billion in Oakland, at immense risk.

A man investigates the damage after Hurricane Irma, one of the strongest storms ever recorded in the Atlantic, made landfall in the Florida Keys. The second major hurricane to hit the United States in under a month puts the East Coast on the front lines of sea level rise and extreme weather heightened by climate change.

Just weeks ago, we witnessed an historic moment in this lawsuit and the global fight for climate justice. The court asked for a ‘climate tutorial’ — ordering the fossil fuel companies and cities to “trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historical cooling and warming, smog, ozone, nuclear winter, volcanoes, and global warming.”

The fossil fuel industry, via Chevron, which was the only defendant to actually participate, presented its version of the history of climate science — something never seen before in a U.S. court. While the companies have (finally) acknowledged on the record that climate change is real and human-caused, they not surprisingly refused to accept responsibility for the damages they have caused. Instead, they’re relying on their favorite trick — shifting blame to others, including you and me.

Chevron claims that it’s not the “extraction or production” of its products (supply — like extracting and sending millions of barrels of oil and tons of gas to the market) but rather “economic activity” (demand — like turning on your lights) that drives climate change.

While the fossil fuel companies may have admitted the truth about climate science — that climate change is real and human-caused — they failed to mention the role the industry has played in pushing for greater oil and gas usage, despite knowing the extent of the harm caused by their products. But this truth will now be told in a court of law: these companies have undermined climate science (and climate action) for decades through their campaigns of deception, doubt, and denial.

The judge in the case made clear that the tutorial was not a trial but an opportunity to educate the court on climate science. So mark your calendars for May 24, when the parties will return to court to argue the fossil fuel defendants’ motion to dismiss. The fossil fuel industry will have to tell the judge what they knew and when they knew about the causes and consequences of climate change.  And there could be far-reaching implications: what the companies say in court is directly relevant to — and likely to be used against them in — other cases and investigations brought in the U.S., Germany, the Philippines, and elsewhere around the world. Also on May 24, the Commission on Human Rights of the Philippines will hold hearings into the major fossil fuel companies’ contribution to human rights harms resulting from climate change.

Protestors march the streets, holding a banner reading, “Hold the Big Polluters Accountable.” Typhoon survivors and civil society groups in the Philippines, delivered a complaint to the Commission on Human Rights of the Philippines (CHR), calling for an investigation into the responsibility of big fossil fuel companies for fueling catastrophic climate change that is resulting in human rights violations.

It’s clear that the fossil fuel companies are becoming increasingly nervous about the threat these lawsuits pose to their bottom lines and to their reputations. Exxon, for example, has filed countersuits and attempted to shut down the New York and Massachusetts investigations into whether it misled investors and consumers about the risks of climate change. Two weeks ago, a U.S. court rejected Exxon’s claims that the investigations are politically motivated acts of retaliation and highlighted that any false statements Exxon may have made are not protected speech under the First Amendment. The investigations will proceed.

The writing on the wall is clear: the companies that extracted, produced, and sold fossil fuel products — despite their long-standing knowledge of climate science and associated risks — can and should be held accountable for the harms that people and communities are now suffering. These climate polluters must pay their fair share of damages that local governments have already incurred and will continue to incur in the future. As other courts have recognized in liability lawsuits involving tobacco and asbestos, the extreme costs associated with harm should fall on polluters, rather than consumers or taxpayers.

Alyssa Johl

By Alyssa Johl

Alyssa Johl is an international environmental and human rights lawyer, campaigner and organizer, and consultant to Greenpeace US. Alyssa's practice focuses on human rights and climate change, working to protect the rights of those most vulnerable to climate change and to develop new legal strategies to accelerate action on climate change.

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