By Amy Westervelt
A compelling sticking point arose in the San Francisco and Oakland climate liability suits against the oil industry during U.S. District Judge William Alsup’s hearing two weeks ago: the judge wanted to know how to balance the need to continue using fossil fuels while potentially holding the companies producing them accountable for damages they cause. This week, he received briefs from both sides with their takes on that question.
The debate stems from the oil companies’ contention that the suits are aimed at shutting them down, which would take a massive toll on a society that still primarily relies on fossil fuels for energy. The cities’ attorneys, in response, explained to Alsup in the hearing that is not the case. Steve Berman, lead counsel for the cities, explained to Alsup that the case does not seek to end oil production but to ensure that the companies pay for the costs associated with the damages their product causes.
“Berman’s right,” said Marco Simons, regional program director and general counsel for EarthRights International. Simons is lead counsel for several Colorado communities bringing climate liability suits against ExxonMobil and Suncor. He said that while nuisance cases in the past often did require that the company or person stop doing whatever was creating the problem, the law has evolved.
“The courts have created some exceptions to say, ‘Well, as an alternative we’re going to let you continue, but you have to pay for the damage you caused.’ So, the question of public benefit is only really a question of whether you’re trying to shut down the activity or to make a company pay for the damage that it’s causing. If the benefits are outweighing costs, you can pay for the damage and still continue the activity.”
While Alsup repeatedly returned to the progress enabled by fossil fuel production—from the Industrial Revolution to present day technology—those pressing the suits say that concern over the benefits of fossil fuel production is a red herring.
“We’re not trying to shut down oil production or shut these companies down or even impose limits on emissions,” Simons said. “All we’re trying to do is what courts have done for hundreds of years, which is to say the people responsible for causing damage to people and property have to be responsible for their share of the cost of responding to those injuries. We’re not arguing that fossil fuels are in and of themselves a nuisance. The nuisance is climate change. And these companies that unquestionably played a role in creating the nuisance have to play a role in covering the cost of damages.”
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Gimme! They do seem intent on following all the negative stereotypes of liability lawyers.
But dig a little deeper, and you find out who’s BEHIND Climate Liability news (screencapture here: http://gelbspanfiles.com/wp-content/uploads/2017/10/CCLbrd.jpg ):
“Climate Liability News is a project funded by donations to Climate Communications & Law, a new 501(c)3 nonprofit … The CCL Board: Kert Davies—Executive Director of the Climate Investigations Center. ….”
That’s ex-ExxonSecrets/ex-Greenpeace’s Kert Davies, the guy I detailed at WUWT back in 2015 here: “Greenpeace: The roots of Climate Smear” https://wattsupwiththat.com/2015/02/26/the-origin-of-climate-smear/
501(c)3, … say no more.
… a non-profit probably campaigning for, actively writing proposals for, and receiving grant funding and donations (tax deductible, of course) to pay an Executive Director’s salary who knows where the money train is parked for his/her career advancement.
Nah, … I don’t profile much.
Someone needs to put a bug in Trump’s ear about ending “non-profits” all together. There is no difference between a business and a non-profit organization, except that they don’t pay taxes and the non-profit CEOs usually make a lot more money.
Yep, often an excuse for unfair trading practices. UK high streets are now crowded with “charity shops” which run on unpaid staff’ pay no taxes, social security / retirement contributions; no business rates and often no ground rent.
They still are decked out like Top Shop with fancy interior designers in London getting massive sums to “relook” the brand and directors making a nice fat salary.
Other ordinary businesses are supposed to compete with these cheats.
Oxfam was the first to be called out for only passing on about 10% of its revenue to the starving children they used a poster porn to draw in donations.
Greg
Try Dartford charity shops mate.
Still the dog end of the genre. Grubby little holes with pasty old dears selling crumbling Ikea and G Plan furniture to people who can’t afford the bus fare to Bluewater or the tunnel toll to Lakeside.
Lived here for 30 years and the main road in is quite literally like a slum with boarded up Victorian shops for the past 15 years thanks to Tesco pulling out of a deal it dragged it’s heels over for 12 years.
Dartford is charity shop heaven, in one of the most prosperous parts of the UK.
I once bought everyone an Oxfam “Goat” as their Christmas gift- $50 donation per ‘goat” with a cute image on cards I sent out x 8- so 8 needy families somewhere got one..nice idea .BUT BUT turns out most SELL off the goat for cash ASAP for other things they want more. They sells ‘cows’ too for a whopping lot more. I also learned Oxfam often doesn’t give a goat at all, but other items, food, meds.
Amen, brother! I’ve always said that tax-exempt organizations are inimical to real positive reform in both science and society. Good intentions and lofty goals are fine, but most of these 501 c(3) and c(4) organizations have become huge money-laundering entities focused primarily on self-preservation and donation growth.
And executive compensation has grown to exorbitant levels. IRS is supposed to check the growth of exec salaries, but the 501 c corporations get a pass by comparing their lavish exec salaries to those of other 501 c entities and claiming “We’re just paying what the market demands for executive talent”. BS
501 c corporations are virtue-signalling when they claim “non-profit” status, as though they are somehow less money-grubbing than for-profit corporations. Level the playing field and make 501 c corporations pay 15-20% tax on gross receipts, similar to regular corporate entities.
Drain the swamp.
Is it correct to say then that the only difference between a for-profit and non-profit organization is that the (not re-invested) excess money generated in the for profit case is taxed and handed to the shareholders and for the non profit one it goes to the staff and ceo??
My wife was president of the local branch of a non-profit professional organisation. When they made TOO MUCH money from their annual conference, it raised loads of problems about just what to do with it! (The organisation ended up running free courses for new entrants). It might have been easier if the board had just PAID all of the volunteers, but that would have opened a can of worms, to say nothing of the impact on honesty. After all, they weren’t POLITICIANS, were they?
Surely this constitutes STANDOVER TACTICS and is EXTORTION !
Extortion is a CRIMINAL OFFENCE !
Shouldn’t the Oil Companies involved be COUNTER-SUING and
demanding JAIL-TIME for those perpetrating the extortion ?
The Oil Companies could then demonstrate their respect and
consideration for the Communities involved by NOT asking for
Heavy Fines or Compensatory Damages to be awarded against them !
Just JAIL-TIME for THE PERPETRATORS would satisfy them !
Look at the defendants. They aren’t private companies, ma-pa operators, or even mid-sized public companies. It’s usually just Exxon, who also happens to support things like a carbon tax and other draconian regulations on the industry. If you can’t monopolize by sending goons to the competition’s front door or simply preventing them from being able to sell their product, you might as well have the government help you put them out of business.
And it was the Rockefellers themselves that began this climate crusade against Exxon almost 20 years ago — despite having a huge vested interest in the company. They’ve always been savvy at underhanded and unethical business practices. They have done well at milking both sides, promoting the funnelling of public coffers into “environmental” industries while hindering the competition in the petroleum business at the same time.
“Extortion is a CRIMINAL OFFENCE !”
Almost as egregious an offense as USE OF ALL CAPS!
If they are not trying to stop the use of “Fossil Fuels” then they are admitting that the benefits outweigh the imagined damages ! IMHO…
Give them what they wish for, stop all fossil fuel production and deny them the benefits of a world that is powered by fossil fuel – then see how long it takes them to come to their senses. I am 75 years old and todays world is far better than the world of the 1940′ s and 50’s. However if they know better, then pull the associated benefits from them. They should bear in mind that when their children ask why they destroyed a world that provides a better standard of living then that which the Kings and Queens of yesteryear could only dream of, they should have better answers than those provided by the fairy tales they currently believe in.
That’s the story of Atlas Shrugged. Producers, people who live by the use of their minds, have been branded as evil. So they withdraw from the world, and it collapses. Your suggestion would have an even more immediate effect, and I, for one, applaud it.
Read A S as a teen, and I swear it changed me forever, and I didn’t realize it, or was able to express it til much later. Last year found her BEST book “Capitalism: The Unknown Ideal..(was unknown when she wrote it!) really terrific set of articles & thinking, showing how the “businessman” is ALWAYS an Evil F*..AND he should pay for all our ‘good deeds”, our charity balls, etc. and we will still despise him to his face…just LOVE this book. Buy as ‘used’ only now.
Cosa Nostra also don’t want your business to shut down. Big fleas have little fleas upon their backs to bite ’em, little fleas have lesser fleas and so ad infinitum.
I signed up for their email list a few months ago. They average about one article per weekday; here’s a sample email:
———- Begin Forwarded message ———-
From: Climate Liability News
Date: Mon, Mar 12, 2018 at 8:30 AM
Subject: New Article Published – California Utilities, Climate Change and Wildfires: A Liability Quagmire
To: …
Hello Gavin,
We have published a new article on our website : California Utilities, Climate Change and Wildfires: A Liability Quagmire
You can view it from this link : https://www.climateliabilitynews.org/2018/03/12/climate-change-wildfires-california-utilities/
Thanks & Regards,
Lynn Zinser, Executive Editor
Climate Liability News
You received this email because in the past you have provided us your email address : AmbulanceChaser@DeweyCheatemAndHowe.com to receive notifications when new updates are posted.
No longer interested in emails from Climate Liability News?. Please click here to unsubscribe
———- End Forwarded message ———-
Love the e-mail address! Proof positive that no human being was involved in processing your sign up. Unless they have a sense of humor. No wait…we’re talking about liberals here. It’s not funny unless you are blowing up children who are questioning the climate consensus.
It’s not real. That’s not the address I actually used. I altered the contact info in the message before posting a copy of it here. Note that the “From” line has its email address removed, as well.
Posting real, unobfuscated email addresses is an invitation for spam-bots to harvest them and add them to spammers’ lists (which is why climate activists like to post my unobfuscated email address: harassment). I have my contact information on my web site, including email address and phone number, but the email address is obfuscated with a captcha-like image, to thwart the spam-bots.
That must be the centerfold, very shapely disaster there, hubba hubba
Definitely a hottie.
The nuisance is climate change. Climate change caused by that nuisance of a tiny amount of additional energy being “held” in the lower part of the atmosphere by a minute increase of Co2…… Oh, wait….. There it is again – the nuisance of reality, the nuisance of the lack of a watertight (ha, ha) DIRECT link. Now where did I put that chart of global surface temperatures over the last 1,000 years and the equivalent chart of Co2? Yes, I know. They don’t really tell us much, being as incomplete a picture as they are, but I got to send them to the judge anyhow….
If the climate change is only a nuisance; get the plaintiffs to pay.
Stop selling “fossil” fuels in CA. No more damage to worry about= problem solved.
Unfortunately the industry as a whole would need to decide to stop selling petroleum in CA., and that would probably be seen as collusion between public companies and deemed illegal. It would require a CA. law stating that the use or selling of the products would be illegal, and no politician is in that big of a hurry to end their career.
Other companies in the same industry could end up in the very same situation if they move into the supply gap.
This is government involved in this action and maybe an opportunity to get court a judgement in place that could affect future cases.
IMO, let this California city go “cold-turkey” without fossil fuels.
This California city legal action situation looks very much like a part of putting over the climate change agenda at the sub-national level state by state and city by city.
First they have to prove damages.
Yeah, what damages?
Precisely.
Perhaps the oil companies can join together in a RICO suit against this publication.
The sharks have smelt blod in the water, and so will be hard to get rid off now.
Your speling gives me a haddock.
“All we’re trying to do is what courts have done for hundreds of years, which is to say the people responsible for causing damage to people and property have to be responsible for their share of the cost of responding to those injuries. ”
This presumes damage which must be evident. The only evident damage has been to science itself and those at the IPCC who perpetrated this damage should be held liable for the resulting financial harm that’s impeding the advancement of humanity.
Except that the people causing the damage are the consumers, as they are the ones benefiting from the use.
The oil companies offer a product. It is the consumer that is supposedly “polluting”.
and it is the consumers paying the “damages” to themselves through higher fuel costs minus a healthy rake off to the lawyers each time round the loop.
Good point…combustion takes place at the behest of the consumer.
Edit…On second thought, it doesn’t matter anyway because it will still be the consumers that pay thru higher fuel costs anyway.
Imagine the liability on other industries if they found that even if a product has an obvious net benefit, they must pay reparations for any damage, whether proven or purported and regardless of the magnitude, that their product causes.
The food industry, pharmaceuticals, automotive, entertainment, basically everything except for a few service industries. Establishing precedent for a lawsuit on imaginary damages is the law industry’s wet dream.
Hey, maybe we need a class action on the law industry for the damage it does on society, now who wants to represent me?
The food industries and obesity. Bingo!
Well, no, actually.
On both counts
Since the end of the little ice age, climate change has been 100% beneficial.
Since the MWP, Roman and Minoan optimums were several degrees warmer than today and the Holocene optimum was as much as 3 to 5C warmer than today and nothing bad happened, we have evidence that at least that far, there are no damages to worry about.
As long as there is only upside (ridiculous jury awards) and no downside (plaintiff liabilities like defense attorney fees or counter-suit damages) this will only continue.
There needs to be tort reform directed at lawyers filing these suits that makes them really pay for it if they lose. Now since most of our legislators are lawyers, I’m sure we all can expect it next session and this will all go away. /s
Users are more culpable than the suppliers. Nobody forces users to use fossil fuels.
Maybe the supliers put substances in the oil to make the users adicted. In that case the supliers are culpable.
The addictive substances are already there. They include, long life spans, transportation, heating, cooling and high GDP per capita.
Ah, so with their obvious benefits to society we are being extorted into using fossil fuels, brilliant.
The only additives I know about are things to keep the engine clean.
That’s it, if the oil companies didn’t keep the engines clean and allowed them to get all yucky, people wouldn’t want to use their cars as much.
It’s not the production of fossil fuels that produce the supposed costs that so agitate San Francisco and Oakland. It’s the use of fossil fuels that cause the supposed costs.
So, who uses fossil fuels? Why San Francisco does. And so does Oakland.
It’s quite clear, therefore, that San Francisco and Oakland should be suing Oakland and San Francisco to recover the costs produced by the use (not the production) of fossil fuels.
That leads to the obvious point that San Francisco and Oakland can bring the costs to a screeching halt by merely suspending their use (not the production) of fossil fuels.
Pat,
Yes, from above, “And these companies that unquestionably played a role in creating the nuisance have to play a role in covering the cost of damages.” Why don’t the consumers, who actually are producing the CO2, have to pay also? The obvious answer is that the citizens would be unhappy with paying even more taxes than what they currently do.
If the people suing the fossil fuel companies claim they are damaging the environment, then if these people are actually using fossil fuels they are knowingly damaging the environment.
How about a lawsuit against them? Or file a lawsuit against the AG of each state or municipality doing this. It isn’t the gun that kills people, it’s the person pulling trigger.
What defense can they have if they are currently in court contending what they are using is at fault? The common sense climate side needs to get creative.
Both San Francisco, Oakland, and the adjacent communities are still approving LOMA’s & LOMR’s.
During the approval of such, the Jurisdiction(s) need to certify that the properties are and will be “safe from flooding”.
Now, if these cities truly think that sea level will rise to endanger their ocean/portside properties, then they shouldn’t still be allowing & certifying that the properties to be removed from the requirements of FEMA’s flood insurance & (flood proofing) construction practice requirements will be safe from flooding.
If Exxon isn’t aware of this item (similar to the bond certification/rating deal), then they are free to contact me.
Berman said, “….the case does not seek to end oil production….”
Nah, it pretty much does.
No, they really do prefer money handed over by those threatened with the lawsuit. The more, the merrier.
The recent Vatican position further helps to reinforce those who are or have been involved in fossil fuel legal action?
It’s like cigarettes. States claim massive healthcare costs even though they neglect tha smokers die sooner (less SSA) and need less care overall than those with dimentia who live til their 80’s or 90’s. Cigarette taxes and the tobacco industry lawsuit settlement means that governments 2/3 of the revenue from tobacco sales. Obviously, government’s want that kind of cut on energy as well. Fuel would cost $8-9 per gallon, just like Europe, which is what Democrats have been trying to do for 25 years.
Everybody dies of something. Eventually.
No, that is not what he wanted to know. Ms Westerfelt cannot or will not read.
What he wanted to get briefs on is whether, as a matter of law, the judge deciding this case is obliged to consider the benefits versus the harms done by fossil fuels.
He did NOT ask for briefs on what the harms and benefits were, which is an empirical and not a legal question. He did NOT ask whether the benefits exceeded the harms.
He asked LEGAL question: whether the benefits are legally relevant to this case.
Why oh why will people not just read the filings?
“Why oh why will people not just read the filings?”
…because made up facts are more fun than factual facts.
So why not take the same approach with companies that produce alcohol, guns, vehicles, planes and bullets? It would be far easier to see the harm in those that CO2.
God…don’t give them any ideas!
There’s laws on the books that shield gun and ammo manufacturers from liability if their products are used in the commission of crimes.
The ‘climate change’ law suits are a lawyers ‘shake down’ cruise, testing out a novel legal theory to steal other peoples money. As the budding ‘climate liability news’ illustrates, it will become a full fledged industry if it is not stopped here and now.
It needs to be rejected with extreme prejudice against the plaintiffs, to prevent any related precedents being set and to discourage any further ‘shake down’ explorations along this ill-legal path.
“I wonder if they’ve considered suing themselves, after all, aren’t USERS of fossil fuels just as culpable in destroying the planet as the suppliers?”
Actually the users are 4 times more culpable in the case of CO2 emissions. According to data from the DOE/NETL Production and Upgrading contributes 11.6% of CO2 emissions. Transport 1.2%, Refining 6.2%, and combustion/use 81.1%.
So go sue yourself, as Anthony put it.
If they have to pay for the damages they do, then they should get a credit for the benefit they cause.
How much is a 20% increase in crop productivity worth?
“The courts have created some exceptions to say, ‘Well, as an alternative we’re going to let you continue, but you have to pay for the damage you caused.’
Herein lies their problem. The courts have always bee willing to require payment for proven damages but most reluctant to grant relief for imagined damages. The concept of damage reparation implies a requirement to prove damages. These lawsuits should all be canceled for lack of proof of damage.