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.”