What Next for the Climate Tort Cases?
Cases against the oil corporations are back to state court. It’s time to map out the following steps.
With the Supreme Court’s refusal to take up the problem, the lawsuits against the oil industry are heading back to state court. That’s where the plaintiffs wanted those cases from the start, but it surely’s not at all the last of the problems they are going to confront. The oil corporations will fight a scorched earth campaign, spending thousands and thousands to contest every possible issue. Listed here are a few of the key issues we will expect them to lift.
Does a state court have jurisdiction to listen to claims against out-of-state oil corporations? The Structure limits a state court’s authority to cases which have “minimum contacts” with the state. That signifies that corporations will be sued only of their home states or in states which have some relation to the case itself. For instance, any suit against Chevron will be brought in California, its home state. But to listen to climate lawsuits against other corporations, the plaintiffs would want to point out that the lawsuits have enough of a relationship to California to justify suing here. The legal doctrine on this area is murky, however the plaintiffs have a very good argument based on the incontrovertible fact that they’re California entities, the harm to them is happening here, and the businesses’ activities in California contribute to the harm. Given the confused precedents, nevertheless, it’s hard to be completely certain concerning the end result.
Are the businesses protected by the First Amendment? Most of the claims are based not less than partly on allegations of misrepresentations by the businesses regarding climate science to be able to promote their sales of fossil fuels. The businesses are more likely to argue that these claims are barred by the First Amendment for 2 reasons. First, they are going to argue that they will’t be held accountable for failing to reveal their knowledge of the causes of climate change because there was uncertainty concerning the topic and it was controversial. There are Supreme Court cases that give broad protection against “compelled speech.” The plaintiffs will argue that these precedents don’t apply, and that in any event the businesses’ were engaged in deceptive conduct, not only failure to reveal.
That brings us to the second argument that corporations could make, that any deception claims relate to speech intended to influence the political process and that political speech is exempt from liability even whether it is false. The Supreme Court gives more protection to what it considers public discourse moderately than industrial speech like promoting. The boundary between those two categories is somewhat blurry. It might be helpful it the plaintiffs can show that the businesses were also motivated by a desire to enhance their image and increase sales, not merely to influence the political process.
Are the lawsuits preempted by federal law? Of their efforts to get the cases into federal court, the oil corporations argued that federal law bars state lawsuits about climate change. The arguments are available in two forms.
One tries to mix two lines of precedent to argue that state liability rules were preempted by federal liability rules, but that the federal liability rules themselves were displaced by the Clean Air Act so no basis for liability stays. That argument has at all times struck me as too clever by half, but that doesn’t mean that every one judges will agree. I don’t expect this argument to win in state court.
The opposite argument is that the Clean Air Act itself eliminates state lawsuits for interstate pollution. That seems flatly fallacious to me, but there’s one federal court opinion that gives support. In arguing against federal jurisdiction over the climate cases, the Justice Department argued that even when these arguments were valid, that wouldn’t be a basis for moving the cases to federal court. That leaves the door open to raising the identical arguments in state court as defenses. As I’ve said, I don’t think either argument holds water, but the businesses are sure to push them strongly within the state court litigation.
Is there a transparent enough connection between the businesses’ conduct and the harm to the plaintiffs? With a view to obtain damages, the plaintiffs must show that their harm in the shape of sea level rise and other impacts was attributable to the conduct of the oil corporations. The chain of causation is something like this: oil company conduct increased their sales; the increased sales caused the emission of additional carbon; the extra carbon contributed meaningfully to climate impacts; and the climate impacts moderately than other aspects caused specific harm to the plaintiffs (harm as a result of extreme weather, the necessity to construct latest sea partitions, etc.). The oil corporations will contest each link on this chain, they usually will even argue that the chain as a complete is simply too indirect and attenuated to be a basis for liability.
In other words, we’re nowhere near the top of this litigation, but we now have not less than seen the top of the start. The plaintiffs’ lawyers have their work cut out for them. But day-after-day these cases proceed, the risks to the oil corporations grow, something that their investors and lenders are well aware of.
