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.”
Discover more from Watts Up With That?
Subscribe to get the latest posts sent to your email.
Try this… A city files suit against the oil industry for causing climate change. The oil industry attorneys file for a preliminary injunction barring the oil industry from selling their products in that city.
One of two things will happen.
1) The city attorneys will vigorously fight against the preliminary injunction because of the damage it would do to the city. Thus they have to argue the city needs the oil industry products to survive and the city’s case fails.
2) The court will issue the injunction and the city will very quickly wither and die. At which point the city’s case fails for lack of a plaintiff.
Well the suit is not on industry as a whole, otherwise that would be a brilliant plan. The suit is on Exxon, and I’m convinced there are those with a large vested interest in Exxon that actually want the lawsuit to succeed.
Hopefully the lawyer’s children will have shoes this winter.
The legal fun and political shenanigans will continue until there is planetary cooling or until we awaken from the idiots’ nightmare.
We are absolutely clueless as to what caused the warming in the last 22 years (post 1996).
We are clueless as to how much cooling to expect and how fast the cooling will occur.
http://www.ospo.noaa.gov/data/sst/anomaly/2018/anomnight.6.11.2018.gif
William Astley:
You write that “we are absolutely clueless as to what caused the warming in the last 22 years (post 1996).
No, the cause of the warming is easily explained.
Variations in Earth’s temperatures are caused by varying amounts of SO2 aerosols in the atmosphere, primarily due to volcanic eruptions, but since circa 1975, also due to global Clean Air reductions in SO2 aerosol emissions.
For example, the 1997-98 “El Nino” was caused by a 7.7 Megaton reduction in SO2 aerosol emissions due to Clean Air efforts, and the 2014 -2016 “El Nino” was due to a massive reduction in SO2 aerosol emissions of about 30 Megatons by China
With regard to future cooling, it will primarily be driven by volcanic eruptions, as happened during the Little Ice Age.
And the cause of the cooling after the Roman and Minoan Warm Periods?
Sorry Burl, but I’m suspicious of easy and “neat” answers to changes in something as complex as the climate.
JohnB.
There was a very recent paper stating that the end of the Roman warming period was due to extensive volcanic eruptions–I don’t have the reference at the moment, perhaps someone else remembers it.
The climate is FAR from being complex, it is simply as I have stated. Essentially every peak and valley of a plot of average anomalous global temperatures since 1850 can be traced to decreases or increases in SO2 aerosol emissions, with no indication of any additional climatic effect from “greenhouse gasses”.
The biggest error in the IPPC’s modeling is the assumption that fossil fuel burning is the sole cause of the rise in atmospheric CO2. They admit that natural emissions of CO2 are around 20 times anthropogenic emissions but assume that natural emissions are always balanced by natural sinks. The fact is that those natural sinks don’t know the difference between natural emissions and anthropogenic emissions. In a flow system, If, for example, the sinks are only absorbing 95% of natural emissions, they will also absorb 95% of anthropogenic emissions resulting in about a 5% rate of increase in atmospheric concentration. An increase in natural emissions over an increase in sink rates is the more likely cause of the increase in atmospheric concentrations. The correlation between ENSO and CO2 concentrations is strong evidence to this being true. The burning of fossil fuels contributes an insignificant amount to climate change.
I think Florida should file a similar suit against tourists. We don’t want them to stop coming and benefitting our economy but they need to pay for all the damage they cause while they are here.
Let’s try to explain this clearly.
The suit is being brought under the common law of nuisance. Under this law you can only claim for actual damages incurred. The appropriate remedy for future damages is an injunction, which you can use to prevent the defendant from continuing the course of action which will do the future damage.
This is going to be a major problem for the plaintiffs, and its connected to the question of causation. They are going to have to show actual damages already for which they are claiming, and they are also going to have to show that these damages were caused by the actions of the defendants. In this there are going to be two issues. One is that the defendants’ products are a small proportion of total emissions. You can only be held accountable for the harms you have caused, under common law nuisance. If you did 5% of the emissions, you cannot be held liable for all the damage.
So this will be a problem. The other problem will by tying back the particular event or damage complained of, eg the erosion of a beach at a given point, to the emissions. This is going to be quite tough. So we have two issues here, one is proving causation at all, the other is proving the share of causation.
However, the damage, if there is any, is not being done by the cities using the oil and gas. Its being done by the world using the defendants’ oil and gas, and the argument is that they knew that the damage was being done, and deliberately tried to conceal it from their customers and the world.
So everyone who asks, why don’t the cities stop using it, or ban its sale, please stop with this. Its obviously, obviously, not an argument.
Now we come to the latest request which this reporter has failed to grasp. The judge is asking for opinions to be filed ON THE COMMON LAW OF NUISANCE. Not on the benefits or harms of fossil fuels or oil and gas. On the state of the law under which this suit is being brought.
His question is: under the common law of nuisance, is a judge deciding the case obliged to consider the benefits as well as the harms of the production of oil and gas?
So once again, would everyone please stop posting about the benefits of fossil fuels, suggesting the defendants stop using them…. and so on. Its not about that. its about, and only about, the common law of nuisance.
If you don’t have some serious legal arguments on the common law of nuisance, you have not even started to think about this request.
I have tried and failed to find any precedent in which, under common law of nuisance, benefits and harms were considered. I have also tried and failed to find any case in which claims for forecast future damages were allowed under it.
If anyone knows any, or has any arguments on this subject, post them, it would be most interesting. Otherwise you are just shouting irrelevancies in the dark.
Read the filings. it is the only way to find out what is going on.
This isn’t about the traditional common law of nuisance. It is about establishing a new precedent that will allow lawyers to become richer by suing for future damages. Just imagine suing sugar producers for future obesity. How about auto manufacturers who knowingly sell products that will damage roads and bridges in the future or that cause future damages during accidents. How about ladder makers who knowingly sell products that will cause future damages to users in the future.
It’s all about making safe spaces where government can protect you from adverse consequences!
I suppose it would be too catastrophic to do for real, but wouldn’t it be fun to engage in an “Esso Shrugged” scenario in which the entire petrochemical industry simply stopped supplying to anybody outside of hospitals and military?
I know, it’s not practical. But wouldn’t it be fun even just for a week if they said, “Mea culpa. We’re no longer producing evil petrochemical products.”
And the only way they would start up again is if all the activists got together and chanted, “klaatu barada nikto.”
If there is “damage” to a third party, then it has to be paid for by the consumer, not by the manufacturer. That is entirely fair and right, as it is the consumer that has benefited from the product, and in consuming it, produced the damage.
Without the consumer, there is no damage. These people are confusing damage done in making a product (e.g. a factory polluting a river) with the externalities that can occur when consumers use a product. CO2 emission from using fossil fuels is an externality, not a primary consequence of manufacture.
You don’t get Boeing to pay for the noise of an airliner at the airport, you get the passengers to pay to noise-proof your home via the charges the airport levies on the airlines.
exactly…..if someone shoots someone else with a gun…..you don’t sue Smith and Wesson
But they will try!
They have tried.
I wonder if they have printed material?
After all, nothing says hypocrisy like, we want to save the planet while we help destroy it, while you read about it.
They’ll discuss that in their next conference on Kilauea.
I will truly know I am of the untermenschen when I get to move in circles where that sentence makes sense.
That does suggest some opportunities for new magazine ideas.
Nonprofit Watch
Data Rigger
FOIA Staller
Paid Protester Times
Denier Hunting
Pope Watch
Message Crafting
and Climate Psychology Today
I wouldn’t be surprised if Exxon is inviting these lawsuits as another way to hinder the competition and create opportunity for more buyouts. Just like they support a carbon tax and the methane rules. Thousands of operators can’t take the hit like Exxon can and they would love to swoop in and buy more legacy production.
If the consumption of fossil fuels is causing harm then it should be the consumers of the product that pay the damages, not the producers. Let’s start with all those jet setting environmentalists and celebrities. Come on hand over the loot! This is like claiming the producers of reality TV should be forced to pay for the aberrant behaviour and social degradtion caused by those who watch it. Hey, maybe that isn’t such a bad idea after all.
The consumers will pay the damages. In the unlikely scenario where these people win damages, the oil companies will pass the cost on to the consumer. The consumer will effectively be paying the law firms their fees and any damages they can steal.
“Can lawsuits balance fuel use…”
If corporations get sued, they will need to raise prices. Higher energy prices will increase costs for energy reliant economic activities. So locally there will be a reduction of economic activity. The reduced economy will lower the need for energy. The recession will also lower tax revenue and increase unemployment.
Welfare recipients do not have the money to spend on virtue signaling like solar cells or electric cars. They will keep their old car, their old fridge, their old heater, ……. With empty coffers, governments will be forced to stop wasting money and concrete on pet projects.
This will further contract the local economy and energy use. And the spiral to the bottom continues. Until you end up in Detroit.
When you get to the Detroit stage, the poor will sit in their cold, dark public housing. They will look out of their broken window and see the ‘Elites’ driving by in their $100 000+ electric cars toward their houses powered by solar panels and battery walls. While they have to pick between eat or heat. This will trigger the ‘Socialist Revolution’ the Greens have been waiting for.
‘The (unemployed) ‘Workers’ will rise up and scale the wall ….. Not Trumps wall but the wall around the gated communities of the Doctors, the Lawyers, the Liberal Professors. The poor will steal their cars, smash their solar panels, burn down their McMansions and rape their daughters. It will go down like every other Socialist Revolution in the 20th century.
Are you folks aware that virtually the *only* scam going on is the one previously attempted by oil companies in the 1980s-90s to smear legitimate global warming climate scientists and legitimate climate science, in order to continue to reap trillions in profits for a corrupt, deadly, unhealthy, dirty, extremely polluting industry–one invented in an age before advanced, modern science determined how deadly it is??
And surely you must be aware that American conservatives are alone in all the world, even among *all* conservatives of every other nation, in unscientifically opposing the proven, settled science of global warming?
That virtually no Phd. climate scientists stand with those who routinely deny the reality of anthropogenic global warming?
That the globing warming denial (a factual word that describes outright rejection of reality) movement routinely fails to make legitimate scientific points because of these discredited techniques and habits:
1) Use of faulty analysis techniques and methodologies, including conflation of methods and facts, using evidence in faulty ways to “prove” irrelevant points, and applying analysis techniques incorrectly or inappropriately;
2) recirculates discredited, disproved theories;
3) trusts rogue, outlier pseudoscientists over credentialed climate science Phds.;
4) believes in the work and beliefs of demonstrated liars and charlatans (like Christopher Monckton, who has no climate science credentials and was kicked out of the royal British Science Academy), and
5) in a religion-like way, trusts *only* discredited science, fitting their preconceptions, that isn’t backed up by the preponderance of overwhelming evidence?
All of which indicates
1) an unscientific, unwarranted, extreme, paranoiac fear of government “control;”
2) general belief in scientifically unfounded conspiracy theories;
3) a religion-like, even cargo-cultish stubbornness in adhering to concepts and beliefs that are quite easily (in some cases) disproved and in most cases have been repeatedly disproved; and
4) an unscientific over-reliance on anecdotal and cherry-picked, unreliable alleged evidence–all of which runs counter to established science and the vast preponderance of evidence that has firmly determined this unpleasant reality: GLOBAL WARNING IS MOSTLY DUE TO MODERN HUMAN ACTIVITIES.
The important things to ask yourself, it’s only for curiosity but also for your psychological health, are, why am I a member of this odd, small, cargo-cult-like community? What is it about rejecting the authority of scientific evidence that appeals to me? What is it I truly fear in accepting this reality? What other beliefs do I have that are similar in nature to this belief? Why do I tend to associate and congregate and communicate mostly with others who share these beliefs, versus independent experts and the overall community, who reject these beliefs based on factual demonstrations, evidence and investigations?
After all, Science is only an “authority” based on facts, not a governmental or hierarchical authority based on establishing control over others. Science is a self-correcting system. It is built on the foundation that no government or religious or business or other authority can control and hide reality enough to disprove something that can be independently verified by any other scientist with the techniques and ability and knowledge to perform the research.
If you truly want to disprove the accepted science of anthropogenic global warming, each and every one of you should get a PhD. in climate science and DO THE RESEARCH YOURSELF. WHAT, exactly, are you afraid of if you did the research? Isn’t it that it’s far simpler and easier to speak out against something than to actually DO anything to disprove it?
Hell, why don’t you band together and crowdsource a funding agency that pays for say, 5% of you as volunteers, to become PhD climate scientists. Then you could use real science to attempt to disprove what has already been proven. That’s what science is about. And scientists make their names by finding a better concept and description of reality, demonstrated by careful appropriate research and pertinent facts that match a new hypothesis, than the previous one.
But none of you are enterprising enough or smart enough or willing to trust your beliefs enough in order to do that! Your post about it and blog about it and talk about it and in some cases, make money off of your words, taking an income from the people who fit your belief systems. The same way priests and preachers do.
In other words, you NEVER put your money where your mouth is. Real climate scientist do. They put in their time, intelligence, diligence and stake their reputations and risk their entire life’s work by collecting facts and publishing the results of their investigations.
Your collective failure to become real climate scientists is what speaks the loudest.
Typical troll. Your blather and nonsense is pure psychological projection.
Is there anything you know that actually has a connection with a form of reality known to science?
1) The oil companies never tried to smear anyone. All of the smearing has gone the other way, government paid “scientists” trying to ruin the career of anyone who get between them and the next grant.
2) Conservatives in most other countries are socialist by any other name, they just want to slow down the march to communism. As to settled science, there is no such thing. The claim that the vast majority of scientists believe CO2 is going to kill everything has been refuted so many times that only the terminally clueless still cling to it.
3) There are hundreds of PhD scientists who dispute the claim that CO2 is problem.
4) Every item in that list is SOP for the global warming sc@mmers.
5) Go away until you can do something other than regurgitate talking points.
I have no idea what you’re on, but can I have some too? Wow !
Tames . . . well are you a climate science PhD?
No, so your pronouncements are irrelevant by your own logic.
I can tell you assuredly that most Australian conservatives are with their US brethren when it comes to global warming.
There isn’t a university in Australia that will countenance anything other than the orthodoxy on global warming.
This is because all Australian Universities are controlled by the left of academia, politics and business.
We know you’re a lefty commenter by your talking points.
We’re ok here so your admonitions are wasted at WUWT.
The good thing is WUWT has curtailed global warming hysteria and will continue to despite anything you or any other left-wing commenter may say here or in any other forum.
Dangerous global warming belief has no hope of success because it is politically aligned with the left.
It (and you) are failing and will fail completely in time; there is nothing more certain in this segment of science . . .
So, all they have to do is:
1) determine the current actual temperature of the earth
2) determine what the temperature of the earth SHOULD be
3) determine the difference (if there is any of statistical significance) of 1) and 2)
4) determine how much of 3) is man-made
5) determine what counts as damage
6) determine how much of 4) actually causes 5)
7) determine how much of 6) is due to oil companies
8) determine how much of 7) per state
No, I don’t see lawyers getting rich here at all, with absolutely a billionth of a decimal’s chance that a billionth of a degree of warming will NOT rise.
I can only see one answer to this problem. If a city sues the oil companies, the oil companies ought to shut down all gas stations, refuse to sell fuel and lubricants etc. from those pursuing the lawsuits, thereby encouraging the cities to take responsibility for the damages they are causing by using petroleum products. After all, fair is fair right?
I’m confused. If the fossil fuel companies have the obligation to pay for the damage to society that their products cause, why doesn’t society have an equal obligation to repay the company for the good to society (over and above the simple purchase of the product) these products have wrought?
Every person who’s ever ridden in an ambulance, helicopter or other fossil fueled conveyance to the hospital which is powered by fossil fuel power generating equipment and equipped with massive amount of fossil fuel derived equipment and disposables owes their very LIFE to the companies that provided these products.
That should be worth something shoudn’t it?
That’s just one example amongst a virtually unlimited number.
I’m guessing that if the true “costs to society” vs the true “benefits to society” were weighed against each other…if that’s even something possible to do…the benefits would outweigh the costs by a YUGE margin.
This fits in nicely with Ambulance Chaser Weekly… … though I think ambulance chasers have more scruples.
Assuming the case succeeded, where actually would the money end up, apart from a slice in the lawyers’ pockets?
“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. ”
…except for politicians, and celebrities.
In Cal v. Oil the defendant’s lawyers (predictably) are inept (no dismissal).
Combustion of oil is the only activity that may give rise to a nuisance.
Extracting, transporting and selling oil would only be a nuisance if a spillage or the like occurred.
We don’t smoke or drink oil so no addiction claim can be made.
Berman is a vexatious litigant.
If successful he’d become one of the World’s richest men doing over automakers next followed by other ‘harmful’ industries including alcohol, fast-food, sugar etc.
But don’t be concerned because if Alsup loses his mind, it’ll be overturned on appeal.
This is the only certainty in the matter.
Re failure to dismiss (inept lawyers) . . . by now the defendant’s lawyers should have been successful in convincing Alsup to dismiss and decide one or more of the following:
a. Order the plaintiff to pay the defendant’s court costs.
b. Forbid the plaintiff from bringing any further lawsuits.
c. Sentence the plaintiff to jail time.
d. Charge the plaintiff with a criminal offense.
Alsup has not because:
a. He’s a liberal.
b. The plaintiff is a liberal government.
c. The defendants are liberal aligned (all advocate either a carbon tax or carbon trading).
d. The defendant’s lawyers are liberal aligned.
Which adds up to . . . the public will pay for all of this (directly or indirectly):
a. All court operation and some lawyers costs will be paid by taxpayers.
b. In the event of a damages award, oil companies will pass the cost on to motorists.
Correction I should have written Berman’s CLIENT is a vexatious (frivolous) litigant.
Berman is an extreme opportunist who ‘promotes’ such litigation.
So, a vexatious litigator who has vexatious litigant(s) for client(s).