Sunday, December 18, 2016

The climate trials of the 21st century have begun

We now have underway the first climate trials (or various stages of them) of the 21st century. The overall question in these trials is actually straightforward: Do governments and corporations have an obligation to protect the habitability of the Earth's climate for human populations?

Let's start with government. The first trial (in the United States) was not actually that recent. In 1999 a group of environmental organizations petitioned the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gases. In 2003 the EPA denied the petition. Several states then joined a legal appeal which reached the U.S. Supreme Court. The court decided in 2007 that, in fact, the EPA did have the authority and the obligation to consider seriously how to regulate greenhouse gases.

The agency then offered a regulation plan which was challenged in court. In 2014 the Supreme Court found the EPA plan acceptable with a few minor tweaks.

This kind of legal battle is really a plain vanilla regulatory fight about what a particular government agency can and should do under existing laws. But a more sweeping type of legal battle is now unfolding, one that invokes a much broader obligation of the government to make the climate safe for future generations.

In Washington state a group of young people between the ages of 12 and 16 sued the state to force it to implement a greenhouse gas emissions reduction plan. The state has since come up with a plan that the attorneys for the children say is inadequate. They are in court once again.

Washington isn't the only state feeling the judicial heat. A group called Our Children's Trust is pursuing legal action in several states (including the case cited above) and in federal court. The federal case is proceeding to trial after the government failed to get it dismissed. The aim of the federal plaintiffs is to seek broader protection in policies across the government, not in just one agency.

Some legal experts give the federal case little chance of succeeding even if the plaintiffs win at trial. Appellate courts and the Supreme Court are unlikely to buy the argument that there is a general obligation on the part of the government to regulate greenhouse gases that is judicially enforceable outside of specific legislation. But, there will be an airing of scientific evidence during the trial and an attempt to expand existing legal doctrines to cover the unique challenges posed by climate change. This case is the first of its kind at the federal level related to climate under the so-called public trust doctrine.

Outside the United States in the Netherlands, a court ruled that the government of the Netherlands must make deeper cuts in greenhouse gas emissions. Similar legal efforts are underway in Belgium and Switzerland.

It's worth remembering that when the first lawsuits against tobacco companies were filed in the United States, few believed they would ever succeed. It took time, but ultimately the tobacco companies were made to pay for damage to public health. And, their advertising was restricted as part of a settlement with state and federal governments. Private lawsuits also eventually found success.

Is there room for private climate-related lawsuits seeking damages? Maybe. If there is general obligation to protect the public from the effects of climate change brought about by greenhouse gases, then it seems logical that those emitting the greenhouse gases might be held liable for damages. A case involving a Peruvian farmer suing a large German utility has just gotten underway. A win, even for the modest damages the farmer is seeking (17,000 euros), could open the floodgates for thousands, perhaps millions more plaintiffs like him. That makes this case a serious financial threat to industries that extract and/or burn large amounts of fossil fuel.

There is yet another kind of climate-related case that is emerging, one that involves the fiduciary responsibilities of fossil fuel companies to inform their investors about threats to their businesses. An investigation of ExxonMobil Corp. initiated by New York State Attorney General Eric Schneiderman is trying to determine whether ExxonMobil hid what its own research discovered about climate change as far back as the 1980s and in doing so misled investors about the risks to the oil and gas giant's business.

Many corporate fraud probes begin in New York State because the Martin Act which governs securities fraud there doesn't oblige the attorney general to assert intent to defraud, only that investors were misled by statements issued by a company. In contrast, Federal securities fraud law requires establishing intent--that is, what is going on in the minds of the people making material misstatements--something that is much harder to demonstrate.

Whether ExxonMobil and possibly other large fossil fuel companies end up paying fines for any such fraud, there will now be a thorough airing of what these companies knew about climate change and whether their understanding contradicted the campaigns they funded either to deny the reality of human-induced climate change or to confuse the public and policymakers about the causes and trajectory of climate change.

This development has a remarkable similarity to what happened to tobacco companies. Those companies were forced to divulge what they knew about the dangers of smoking from their own research. Of course, this was kept from the public as the companies continued to insist that smoking wasn't linked to health problems.

It turns out that the Martin Act also allows for criminal sanctions. But it seems unlikely that anyone will go to jail in connection with the current investigation of ExxonMobil.

That does, however, beg a very important question: Can individuals be prosecuted for misleading the public about the dangers of climate change? It seems unlikely that any case of this kind will be mounted in the near future. In the United States the First Amendment problems with such a case are obvious. But I can imagine that if climate change continues at its current accelerating rate, there might be a clamor by, say, 2030 for the prosecution of prominent climate-change-denying businessmen and politicians.

It is doubtful that such prosecutions would get very far in the United States or many other countries under current law. But it seems plausible, even if unlikely, that an international tribunal, perhaps patterned after South Africa's Truth and Reconciliation Commission, might take up the task of investigating individuals who have been egregiously obstructionist toward action on climate change. Such a commission would seek to bring about so-called restorative (rather than retributive) justice.

That would be a healing outcome. I can imagine much worse.

Kurt Cobb is an author, speaker, and columnist focusing on energy and the environment. He has been a regular contributor to the Energy Voices section of The Christian Science Monitor and is author of the peak-oil-themed novel Prelude. In addition, he has written columns for the Paris-based science news site Scitizen, and his work has been featured on Energy Bulletin (now, The Oil Drum,, Econ Matters, Peak Oil Review, 321energy, Common Dreams, Le Monde Diplomatique and many other sites. He maintains a blog called Resource Insights and can be contacted at

No comments: