Environmental organizations Greenpeace Nordic and Natur og Ungdom (Young Friends of the Earth Norway) are taking the Norwegian government to court once again contesting the approval of new offshore oil fields, with trial starting November 28 at the Oslo District Court. While the groups were unsuccessful in their previous legal challenge, the new round of litigation might reach a different outcome for two reasons.
One, the climate science has gotten even more robust since the Norwegian courts ruled against the environmental plaintiffs in 2018 and 2020, with major reports like those from the IPCC’s Sixth Assessment and the International Energy Agency warning that CO2 emissions from existing fossil fuel infrastructure are expected to exceed the remaining carbon budget for limiting warming to 1.5 degrees C and that no new oil and gas fields are needed in a net-zero emissions pathway. Two, Norway’s Supreme Court determined in its 2020 decision that the government is required to assess the climate impacts of new oil fields before approving them. Plaintiffs say this hasn’t happened or has been wholly insufficient. “The Norwegian government defies climate science and the Supreme Court when they constantly approve new oil and gas projects without taking into account how this affects the climate,” Greenpeace states. The new lawsuit – filed this year on June 29 – challenges the Norwegian government’s approval of three oil and gas fields in the North Sea. The approval and any subsequent extraction, without adequate consideration of the climate change context, violates the Norwegian constitution as well as Norway’s obligations under international human rights law including the UN Convention on the Rights of the Child, the lawsuit contends. This treaty and section 104 of the constitution require the best interests of children be taken into account in matters concerning them, and plaintiffs argue that the oil fields approval goes against this obligation. “The Norwegian government is constitutionally required to protect the fundamental rights of current and future generations. But for every new oil field the Norwegian government approves, it leaves bigger and bigger emission cuts and increasingly deadly, dangerous climate impacts for current and future generations to deal with,” said Gina Gylver, head of Natur og Ungdom. “This is a grossly unfair burden on young people.” Greenpeace Nordic and Natur og Ungdom are calling for a temporary injunction or halt to operations pertaining to the three oil fields until the legal challenge is resolved. According to the Planet Wreckers report published by Oil Change International in September, Norway is among five Global North countries responsible for 51 percent of planned expansion from new oil and gas fields through 2050. As the report explains, “the science is clear that new oil and gas fields are incompatible with limiting global warming to 1.5 degrees Celsius, yet countries are continuing to approve new oil and gas extraction that endangers the global climate objectives they signed.” Frode Pleym, head of Greenpeace Nordic, said in a statement that Norway “is a climate hypocrite, not a climate leader.” “We are confident that we can win this fight against Norway’s aggressive gas and oil policy, which continues to wreak havoc on the climate and people all over the world,” he added. Trial proceedings continue this week in Oslo and are scheduled to wrap up next week on December 6.
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Story originally published by DeSmog
A lawsuit filed by the city and county of Honolulu against nearly a dozen fossil fuel companies is moving towards trial in Hawaii after the Hawaii Supreme Court on Tuesday rejected the companies’ arguments for dismissing the case on appeal. Honolulu first sued 10 fossil fuel companies — including BP, Chevron, Shell, ExxonMobil, and Aloha Petroleum — in March 2020, in an attempt to hold these companies accountable for alleged deception over the climate risks of their products. The fossil fuel defendants had been seeking to have the case dismissed, arguing that the lawsuit was an attempt to regulate greenhouse gas emissions, a task left to the EPA rather than states. In an 82-page opinion issued on Halloween, the state’s highest court firmly denounced the defendants’ characterization of the lawsuit, and agreed with the plaintiffs that the case is simply about whether the companies “misled the public about fossil fuels’ dangers and environmental impact.” The court’s ruling, which upholds the trial court’s March 2022 decisions denying defendants’ motions to dismiss the case, means that Honolulu’s lawsuit will advance to the evidence-gathering phase known as discovery and, ultimately, to a jury trial. While several other climate lawsuits against oil companies — including in Massachusetts, Connecticut, and Rhode Island — are also in discovery, Honolulu’s case is furthest along procedurally among those attempting to recover monetary damages. “This will be the first [climate liability] case to go to a jury,” Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School, told DeSmog. He called the ruling a “breakthrough.” “Not only are [plaintiffs] going to be able to prove there’s been historic, multi-decade lying, but the lying is going on right now today,” Parenteau said. “That’s going to be devastating in my view when this finally gets to a jury. And it will now get to a jury in Honolulu.” Honolulu’s suit is demanding monetary damages to help cover the steep costs of responding and adapting to climate impacts, such as extreme flooding, coastal erosion, and sea level rise. The lawsuit charges the companies with claims of nuisance, trespass, and failure to warn, arguing that deceptive marketing and promotion of fossil fuels worsened the climate crisis and its harmful effects. As the Hawaii Supreme Court noted in its opinion: “Defendants knew about the dangers of using their fossil fuel products, failed to warn consumers about those known dangers, and engaged in a sophisticated disinformation campaign to increase fossil fuel consumption, all of which exacerbated the impacts of climate change in Honolulu.” The case is one of more than two dozen climate liability lawsuits brought against Big Oil in the U.S. by cities, counties, and states, and one fishermen’s trade association, over the past six years. California became the latest jurisdiction to sue the industry with a lawsuit filed in September. Thus far, the cases had been bogged down in procedural wrangling over whether federal or state courts are the proper venue to hear the disputes. Lawyers for fossil fuel companies unsuccessfully argued the litigation belongs in federal court, where they saw an easier path to dismissal. In April, the U.S. Supreme Court declined to take up oil companies’ requests to review the jurisdiction question in a handful of climate cases, including Honolulu’s. Many of the cases are now advancing in state courts, and Honolulu’s suit is on track to be the first to get to trial. “Honolulu’s case is now one of the most important climate lawsuits in the country, if not the world,” Corey Riday-White, managing attorney for the Center for Climate Integrity, an advocacy group supporting efforts to hold climate polluters accountable, said in an emailed statement. “Because of this ruling, Honolulu is poised to obtain more evidence of Big Oil’s decades-long campaign of climate deception through the discovery process, and we’re one giant step closer to that evidence getting in front of a jury tasked with deciding whether these polluters are liable for billions in climate damages.” DeSmog reached out to several of the defendants for comment. BP declined to comment, while Chevron and ExxonMobil did not immediately respond to requests for comment. The Hawaii Supreme Court’s ruling comes after the court heard oral arguments on the companies’ appeal in August. It was the first time the court had been in session following the horrific wildfires in Maui — the worst in the state’s history. Maui has filed a separate climate liability lawsuit against fossil fuel companies, and that case is awaiting a ruling from the trial court on the defendants’ motions to dismiss. Story originally published by The New Lede
US regulators are breaking the law by failing to set a national cap on climate pollution, endangering human health and the environment, according to a consortium threatening to file a citizens’ lawsuit against the government to force “stronger, faster actions to address the climate emergency.” The states of Oregon and Minnesota, along with the San Carlos Apache Tribe and climate advocacy organizations 350.org and the Center for Biological Diversity, said this week that they plan to sue the US Environmental Protection Agency (EPA) demanding the agency respond to a 2009 petition for regulation of greenhouse gases under the Clean Air Act. In a letter addressed to EPA Administrator Michael Regan, the consortium pointed out that the EPA has long known that climate changes are occurring that are harming human health and that the “effects will only worsen over time” without regulatory action. “In the nearly fourteen years since the petition has been pending before EPA, the climate crisis has become far more dire, devastating lives, livelihoods, and ecosystems,” the letter states. The letter references a new “state of the climate report” from scientists that warns: “Life on planet Earth is under siege. We are now in an uncharted territory” and that “time is up.” And the letter quotes the UN Secretary General warning of an approaching “climate time-bomb.” The EPA has 180 days to respond to the letter, called a notice of intent to sue, after which time a lawsuit would be filed in federal district court in the District of Columbia. The Clean Air Act requires control of pollutants that endanger public health and welfare and that come from numerous and diverse sources. Greenhouse gas pollution, the primary cause of the climate crisis, meets those conditions, but the EPA has never regulated it as “criteria” pollutants under the Clean Air Act’s National Ambient Air Quality Standards (NAAQS) program. Instead, the agency had attempted a piecemeal approach focusing on limiting greenhouse gas emissions from certain sectors, namely the electric power sector and motor vehicles. Climate advocates say this strategy has been insufficient. “At this point we’ve tried the sector-by-sector approach, but it’s slow and it’s not getting us what we need,” Maya Golden-Krasner, deputy director of the Center for Biological Diversity’s Climate Law Institute, said in an interview. “We need this more flexible, wide-ranging all hands-on-deck approach. We’re hoping that this letter really lights a fire under EPA.” In the 2009 petition, the Center for Biological Diversity and 350.org asked the EPA to set national pollution limits on seven groups of greenhouse gas (GHG) pollutants, including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride. The agency issued its greenhouse gas “endangerment finding” that year, triggering its obligation to regulate GHG pollution. But the Obama administration ignored the petition in favor of developing what it called the “Clean Power Plan” rule for power plants. The Trump administration then denied the petition on its last day in office in January 2021. The Biden administration reopened consideration of the petition but the EPA has not acted on or responded to it, according to Golden-Krasner. An EPA spokesperson declined to comment, citing the pending litigation. The initiation of legal action comes after the US sweltered through its hottest summer on record, and experienced dangerous heatwaves, deadly wildfires, and disastrous flooding, among other climate-related disasters. This is not the first time EPA has faced litigation over its failure to comprehensively regulate climate pollution. In November 2022 several groups led by the Climate Protection and Restoration Initiative along with leading climate experts and scientists sued EPA to try to compel it to phase out climate pollution under a different federal statute – the Toxic Substances Control Act. Story originally published by DeSmog
A Connecticut judge last week rejected Shell’s latest attempt to quash a climate lawsuit accusing the company of disregarding the severe climate change-driven risks to its fuel and chemical depot on the east bank of New Haven Harbor. The ruling, coming about a year after the federal district court in Connecticut denied Shell’s motion to dismiss the lawsuit, means that a trial in the case could start sometime in 2024. During the October 19 hearing, Shell argued that under the New Haven terminal’s Clean Water Act permit, the company is not obligated to consider climate change factors in its design and operations. While the permit specifies that Shell must apply “best industry practice” to minimize pollution discharge, the company held, it does not explicitly mention climate change. Judge Jeffrey Meyer rejected Shell’s argument “in quite strong terms,” and suggested setting a trial date for May, according to Chris Kilian, vice president of strategic litigation at the Conservation Law Foundation and one of the attorneys in the case, which CLF brought in 2021. CLF has charged that Shell’s failure to account for climate change puts the neighborhoods and environment around the company’s terminal on New Haven Harbor — an inlet on the north shore of Long Island Sound, roughly 80 miles northeast of New York City — at high risk of being swamped with oil and toxic chemicals during climate crisis-driven extreme storms or flooding. Kilian said Shell’s stance is essentially “a climate denial position,” and inconsistent with its own recent public and regulatory disclosures. In its 2022 annual report to the U.S. Securities and Exchange Commission, Shell acknowledged that “increases in temperature and sea levels and fluctuations in water levels could also adversely affect our operations and supply chains.” And in a Climate Change 2023 Information Request to the Carbon Disclosure Project, Shell wrote that “climate variability is considered in the design and operation of our assets and infrastructure to minimize the risk of adverse incidents to our employees and contractors, the communities where we operate, our equipment and infrastructure.” Kilian said the company should be held accountable for these statements. “Shell is saying we haven’t considered these [climate factors], we don’t have to consider them, and in fact the case should be thrown out because these risks are speculative and only occurring in the future,” he told DeSmog. “That is fundamentally inconsistent with their disclosures to the Carbon Disclosure Project and the SEC, and with their own long standing knowledge of climate risks.” Judge Meyer ruled that mere absence of explicit language in the permit was not enough to toss out the lawsuit. Whether “best industry practice is to consider climate change factors is a factual question that the Court cannot resolve at this time,” he said, according to the court record. In an emailed statement to DeSmog, a Shell spokesperson termed CLF’s allegations “unfounded,” and said the company’s position is that they “should be addressed as part of the existing regulatory process, not by the courts.” “The New Haven Terminal is committed to protecting the environment, respecting our neighbors, and setting high environmental standards in line with regulatory requirements,” the spokesperson stated. Killian said that the case is currently on track to go to trial in the fall of 2024, rather than during the spring as Judge Meyer recommended, because Shell has “flatly refused” to provide CLF with any information about its own knowledge of climate change risks and engineering standards, or application of best industry practices to address these physical risks at its own facilities. “They’ve really stonewalled us on discovery,” Kilian told DeSmog, referring to the pre-trial, evidence-gathering phase of litigation. “Realistically, we’re concerned that it’s not going to be easy to get to trial by May.” This case is one of several that CLF has filed against oil companies operating in New England, including another lawsuit against Shell in Rhode Island, and a similar case targeting Gulf Oil over its New Haven terminal. CLF has also sued ExxonMobil over its oil terminal on the Mystic River in Everett, Mass. just north of Boston. Exxon put the facility up for sale last year, and is trying to get the suit thrown out on the ground that it has ceased operations at the terminal. Shell and other oil majors are currently facing a barrage of litigation nationwide, including several cases brought by state attorneys general alleging that the industry defrauded consumers by denying or downplaying the risks of burning fossil fuels, despite knowing for decades that doing so would destabilize the climate. CLF’s suit against Shell in Connecticut is one of just a few of these climate cases that have progressed to discovery. In Massachusetts, discovery is underway in a climate-focused consumer fraud case brought by the state’s attorney general against Exxon in 2019. And in April, a judge in Rhode Island granted limited discovery in a climate damages case filed by the state against Shell and other oil and gas companies in 2018. Story originally published by DeSmog
Despite its name, ambition was largely lacking at mid-September’s Climate Ambition Summit at the United Nations in New York. Secretary General António Guterres asked nations to arrive at the session with concrete commitments for phasing out fossil fuels, observing in his opening remarks that “humanity has opened the gates of hell.” But the event was overshadowed by the major polluters who didn’t attend. Those absent included China, the United Kingdom, and the United States, which continue to expand oil and gas production. UK Prime Minister Rishi Sunak chose the very day of the summit to announce that his government will push off the deadlines for phase-outs of methane gas-burning boilers, as well as sales of new gasoline and diesel-fueled cars. In a statement responding to the summit’s shortfalls, Greenpeace International Executive Director Mads Christensen said that lagging governments should expect to be held accountable “on the streets, in the courts and at COP28,” the last a reference to the upcoming international climate treaty conference in Dubai. Using the courts has become especially critical, say climate experts and lawyers, given the insufficient political responses to the climate emergency. “In the face of a grinding gridlock in international climate governance, as we’ve seen in New York, climate litigation represents a powerful tool to hold governments accountable and close the ambition gap,” Lucy Maxwell, co-director of the Climate Litigation Network, a project of the Urgenda Foundation in the Netherlands, told DeSmog. In 2015, the Hague District Court in the Netherlands issued a landmark ruling — subsequently upheld on appeal — in a climate lawsuit brought by Urgenda and Dutch citizens against the national government. It was the first in the world to establish that their government has a legal duty to protect its citizens from dangerous climate change. The success of this case has inspired a wave of similar lawsuits in several other countries, many of them successful. ”The highest courts in the Netherlands, Ireland, France, Germany, Nepal and Colombia have all recognised that climate action is a legal duty,” said Maxwell. As governments continue to be intransigent, and the fossil fuel industry uses its influence to hamstring transformational climate policies, courts represent an important lever to bring about change. “Litigation has a key role to play in light of this lack of ambition from states and other stakeholders,” said Maria Antonia Tigre, director of global climate litigation at the Sabin Center for Climate Change Law at Columbia University. While not a silver bullet solution, she told DeSmog, litigation is certainly “part of the answer.” According to a recent report from the UN Environment Program (UNEP) and the Sabin Center, climate lawsuits have more than doubled in the past five years. Climate litigation is a “frontier solution to change the dynamics of this fight,” according to the report. “There is a distressingly growing gap between the level of greenhouse gas reductions the world needs to achieve in order to meet its temperature targets, and the actions that governments are actually taking to lower emissions. This inevitably will lead more people to resort to the courts,” said Michael Gerrard, the Sabin Center’s faculty director, in a press release accompanying the report. Inger Andersen, the executive director of UNEP, added in the release that litigation holds promise as a “key mechanism for securing climate action and promoting climate justice.” The UN’s Intergovernmental Panel on Climate Change backs these statements. In its latest scientific assessment, summarized in a synthesis report released in March, the IPCC for the first time recognized that climate litigation is both increasing worldwide, and is starting to have an impact on climate governance. In its Working Group III report on climate mitigation released last year, the IPCC noted that since 2015, at least 37 “systemic cases” have been filed against governments, challenging their efforts to mitigate or adapt to climate change. “If successful, such cases can lead to an increase in a country’s overall ambition to tackle climate change,” the report states. Forthcoming Court Opinions Could Be Gamechangers These cases include a sweeping climate lawsuit filed by six Portuguese youths against more than 30 European countries, demanding greater climate mitigation ambition and steeper emissions cuts to protect human rights. The case came before the European Court of Human Rights in a high-stakes hearing on September 27. The youth plaintiffs charge that they are already suffering detrimental health impacts from climate change, and that these health problems will worsen unless governments take more urgent climate action. The lawsuit contends that the dozens of European nations named in the suit are violating the youth plaintiffs’ rights to life, privacy, and nondiscrimination under the European Convention on Human Rights. A favorable ruling in the case would essentially compel the entire region to take stronger and faster climate action. “This judgment would act like a binding treaty imposed by the court on the respondents, requiring them to rapidly accelerate their climate mitigation efforts,” said Gerry Liston, senior attorney with the Global Legal Action Network, which is representing the youth plaintiffs. “In legal terms, it would be a gamechanger.” A ruling in the Portuguese youth case is expected next year, along with rulings from the European Court of Human Rights on two other climate cases – one brought by elder Swiss women against the government of Switzerland, and the other filed by a French citizen and former mayor against France. There are climate lawsuits against national governments pending in domestic courts in Australia, Belgium, Canada, Germany, Guyana, Italy, Peru, Poland, Romania, Russia, South Korea, Sweden, the UK, and the U.S. as well. In the U.S. there was a historic legal breakthrough this summer, when a court in Montana decided in favor of sixteen young people suing the state over its role in worsening the climate emergency. According to Gerrard, this ruling is “the strongest decision on climate change ever issued by any court” to date. Internationally, proceedings are underway before several tribunals that could have significant ramifications. In one of these cases, small island states are seeking an advisory opinion that defines countries’ legal requirements for protecting the oceans from harmful climate impacts — such as ocean acidification and sea level rise – that threaten their very existence. A two-week hearing on the case before the International Tribunal for the Law of the Sea in Hamburg, Germany concluded on Monday. In another, the small island state of Vanuatu has spearheaded a request for an opinion on climate from the International Court of Justice. Vanuatu and its allies have asked the ICJ to clarify the legal obligations of nations to prevent climate harms, along with the consequences of failing to do so. “We are hoping it will increase more climate ambition,” Odo Tevi, Vanuatu’s ambassador to the UN, said during a press conference at the Climate Ambition Summit. “It will be huge globally, if it is favorable.” The Limits of Litigation While climate litigation has significant potential to catalyze climate action, it also has some limitations and challenges. “There is generally a lack of funding and the resources are limited,” said Tigre. While larger NGOs such as Greenpeace are well positioned financially and in terms of staffing to bring climate cases, smaller organizations may find it difficult to sustain, especially if a case drags on for years, she said. In the U.S., climate cases seeking to hold both fossil fuel companies and the federal government accountable have been bogged down by procedural battles for years. The Juliana v. United States youth-led lawsuit against the U.S. government, for instance, has yet to make it to trial eight years after it was first filed in 2015. U.S. District Judge Ann Aiken has not yet ruled on the government’s latest request to dismiss the case. Then there are the challenges of compliance and enforcement. Even with a favorable judgment in a climate accountability lawsuit, ensuring that the government or corporation actually implements the order, or changes its conduct, can be difficult. In 2021 for example, climate campaigners won a groundbreaking ruling in the Netherlands against Shell, with the court ordering the oil major to slash its entire supply chain emissions by at least 45 percent by 2030. Shell is appealing the ruling, and also appears to be flagrantly disregarding the court’s mandate. Another example is emerging in Australia, which a year ago was found by the UN Human Rights Committee to be violating the human rights of the Torres Strait Islanders through its inadequate climate action. Australia is refusing to pay the islanders the ordered compensation. In Colombia, the country’s highest court in 2018 ruled in favor of youth plaintiffs in a climate case against their government, ordering the state to curb deforestation. However, according to Dejusticia, the organization that supported the Colombian youths, the government has failed to comply with the order. “It’s a big problem,” Tigre told DeSmog. “I think it’s part of a larger problem of rule of law and the role of courts and how courts in general enforce decisions.” Governments “Will Face Accountability in Court” To be truly successful or effective, climate lawsuits should fit into broader social movements and advocacy campaigns, Maxwell of Climate Litigation Network told DeSmog. “While cases can take several years to be decided, many cases have led to widespread public mobilization on the urgency of climate action,” she said. Louise Fournier, legal counsel in the climate justice and liability program at Greenpeace International, agreed that climate lawsuits are important for their galvanizing power. “They’re led by impacted people, by communities, by activists,” she told DeSmog. “It’s something that will make lasting change when people organize themselves and actually build power to counter [the] oppressive power that is leading to this climate crisis.” With just two months to go until COP28 – which will be led by the head of the Abu Dhabi National Oil Company, Sultan Ahmed Al Jaber – the prospects seem slim for getting major oil and gas producing countries to commit to policies that phase out fossil fuels. These recalcitrant countries should be prepared to “lawyer up,” say climate advocates and lawyers. “Certainly, if governments continue to fail to take meaningful climate action, especially after COP28,” Maxwell told DeSmog, “they will face accountability in court.” Story originally published by DeSmog
The state of California has jumped into the ring in the fight to hold some of the world’s biggest fossil fuel producers accountable for their role in driving the worsening climate crisis. On Friday, California Attorney General Rob Bonta filed a lawsuit against five oil and gas majors including ExxonMobil, Chevron, BP, Shell, and ConocoPhillips as well as their chief lobby group the American Petroleum Institute. The lawsuit alleges these entities deliberately deceived the public about the dangers of fossil fuels and their impact on the climate system, and effectively engineered a delayed societal response to addressing the climate problem. “These [companies] have been playing us for fools,” California Gov. Gavin Newom said on the NYC Climate Week stage on Sunday. “[They] have been lying since the ’50s, the ’60s, the ’70s and ’80s. They knew.” California’s filing adds to a growing wave of climate lawsuits brought by cities, counties and states across the country against Exxon and its industry peers. A handful of the state’s coastal communities led the way in this wave of litigation by filing some of the first cases against fossil fuel companies in 2017 and 2018. Now more than three dozen states and municipalities are taking corporate climate polluters to court. California has become the eighth state to file a climate liability lawsuit, joining Rhode Island, Massachusetts, Connecticut, Vermont, Delaware, Minnesota, and New Jersey. Given its sheer size, California’s move to take legal action adds significant weight to this mounting roster of states. Attorney General Bonta underscored this in a press briefing on Sunday, noting that California is the “biggest economy yet to sue these companies for fueling climate change and for lying about it.” “We’re joining that fight, on a scale and scope that the oil companies are familiar with, because California, as they know well, means business,” Newsom added. “California’s decision to take Big Oil companies to court is a watershed moment in the rapidly expanding legal fight to hold major polluters accountable for decades of climate lies,” Richard Wiles, president of the Center for Climate Integrity, a group advocating for holding climate polluters accountable, said in a statement. According to the complaint, filed in Superior Court for the County of San Francisco, the defendants “have misled consumers and the public about climate change for decades,” mounting a disinformation campaign to discredit the emerging scientific consensus dating back to at least the 1970s. The alleged deception continues to this day through misleading advertising that greenwashes the companies’ image by portraying them as climate-friendly, the complaint contends. Misleading advertising is among the charges the lawsuit brings, along with misleading environmental marketing; unlawful, unfair, or fraudulent business practices; products liability; pollution and destruction of natural resources; and public nuisance. California is seeking monetary damages, specifically in the form of an abatement fund to help mitigate the rising costs associated with climate disasters and climate adaptation. Noting that just this year the state has suffered from multiple climate-related disasters such as extreme flooding and drought, severe wildfires, and a record-hot summer, the complaint argues that California taxpayers should not have to bear all the costs of dealing with these escalating climate impacts. Instead, “the companies that have polluted our air, choked our skies with smoke, wreaked havoc on our water cycle, and contaminated our lands must be made to mitigate the harms they have brought upon the State,” the complaint states, adding it “seeks to hold those companies accountable for the lies they have told and the damage they have caused.” While other climate liability lawsuits against fossil fuel companies have been tied up in procedural battles for years, many of the cases are now on track towards trial in state courts following a pivotal decision from the U.S. Supreme Court earlier this year. That decision declined the industry defendants’ request to intervene and to rule that the litigation cannot advance in state courts. The Supreme Court’s rejection of the industry pleas was instrumental in spurring California to file suit. “In April the Supreme Court ruled on that issue that we think puts [it] to bed, and allows us to get to where we want to go, to the merits, to hold them accountable for their deceit,” Bonta told reporters on Sunday. Newsom added that the Supreme Court’s decision “really accelerated our conversations, our efforts, and then we moved to get to where we are today.” California is also encouraging other states and even other countries to step into the ring alongside it in the effort to hold the fossil fuel industry accountable. Bonta said he hopes California’s lawsuit “will be an inspiration to other states and other entities to get involved and join us, to sue and be part of the effort to hold the industry accountable.” “I just met with another governor a moment ago. We want to see this spread, we want more and more jurisdictions, the United Nations and more countries to move in this direction,” Newsom added. “Enough’s enough,” he said. “The climate change crisis is a fossil fuel crisis.” Story originally published in DeSmog Attorneys representing a group of young people suing the United States government in a groundbreaking constitutional climate lawsuit are pressing a federal district court in Oregon to deny the Department of Justice’s attempts to quash the case before trial, citing the recent ruling out of Montana in favor of youth plaintiffs as a “persuasive” example of the importance of letting youth voices and climate science be heard at trial. In a filing with the U.S. District Court for the District of Oregon on Monday, attorneys with Our Children’s Trust – the Oregon-based nonprofit law firm spearheading youth-led constitutional climate litigation in the U.S. – pointed to last week’s historic decision in Held v. State of Montana as supportive of their request that District Judge Ann Aiken “set an immediate trial date” for their case against the federal government. That case, Juliana v. United States, seeks to hold the U.S. government accountable for perpetuating a fossil fuel-based energy system and worsening the climate crisis. First filed in 2015, Juliana is currently awaiting a ruling in the district court on the U.S. Department of Justice’s latest request to terminate the case. “The Held Order flies in the face of the arguments of the U.S. Department of Justice (“DOJ”) that a trial in Juliana is a waste of judicial economy,” the attorneys write in their filing, called a Notice of Supplemental Authority. It argues the Montana case shows “youths’ climate injuries from fossil fuel policies and practices are provable at a manageable trial” and that courts can provide relief in the form of declaring government policies and conduct to be unconstitutional. In a first-of-its-kind decision issued August 14, Judge Kathy Seeley in the First Judicial District Court of Montana ruled in favor of 16 young Montanans who put their state government on trial in June in what was the first constitutional climate trial in U.S. history. Judge Seeley found that the state had violated youth plaintiffs’ fundamental rights under the Montana constitution by enacting policies promoting fossil fuels and prohibiting consideration of climate change in fossil fuel permitting decisions, thereby contributing to dangerous climate change and environmental degradation. The ruling cited testimony presented at trial including youth plaintiffs’ personal accounts of how climate change impairs their health and quality of life, backed by experts explaining the science underlying these harms and linking it to government policies. “It’s the first decision that’s really tied tightly to the best available science on how we protect our climate system for young people,” Julia Olson, Our Children’s Trust executive director and chief legal counsel, said of Judge Seeley’s ruling during a Facebook webinar on Monday. “Hearing the expert witnesses and backing up everything we were saying with peer-reviewed scientific evidence, it was all just a really wonderful experience,” added 17-year-old plaintiff Eva Lighthiser of Livingston, Montana. In their Monday filing with the Oregon district court, Olson and co-counsels Phil Gregory and Andrea Rodgers explained that the ruling in the Montana case “recognized the relevance and suitability of climate science to judicial decision-making.” Judge Seeley not only recognized the “overwhelming scientific consensus” that the extraction and burning of fossil fuels are resulting in dangerous climate impacts, but that “every ton of fossil fuel emissions” only worsens these impacts. She even quoted the stark warning from the Intergovernmental Panel on Climate Change in its latest scientific assessment: “Climate change is a threat to human well-being and planetary health (very high confidence). There is a rapidly closing window of opportunity to secure a livable and sustainable future for all (very high confidence).” IPCC Report ‘Incredibly Important’ As Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists, told DeSmog, the court’s recognition of the scientific consensus from the IPCC shows that climate science is relevant to court decisions. “It’s an incredibly important document to be using,” she said of the IPCC reports. “You can’t have junk science that is coming into these courtrooms.” During its defense, the state of Montana did not even try to dispute or discuss climate science; the state declined to call two of their three expert witnesses including climatologist-turned-climate-contrarian Judith Curry. “The state failed to put on any case at all,” said Patrick Parenteau, emeritus professor of law at Vermont Law and Graduate School. Similarly, the U.S. government may have a hard time defending their continued authorization of fossil fuel development when faced with evidence of climate science in a court of law. “The science is very clear,” Merner said. “Right now what we know scientifically is that reduction [of fossil fuels] is the primary way to reduce emissions.” The IPCC’s latest report says that climate mitigation calls for a “substantial reduction in overall fossil fuel use.” And yet the U.S. government continues to permit substantial oil and gas production and to support new fossil fuel infrastructure and extraction projects like the massive ConocoPhillips Willow drilling project in Alaska.
As the Juliana youth plaintiffs’ attorneys note in their filing with the Oregon district court, “thanks to the policies and practices of the last three administrations, Obama, Trump, and now Biden, the United States is today the largest producer of oil and gas in the world.” These federal policies and practices promoting fossil fuels, the Juliana case argues, contribute substantially to the climate crisis that is already harming young people, violating their constitutional rights such as rights to life, liberty and property. The case had twice been scheduled for trial but persistent government opposition ultimately derailed trial proceedings before a federal appeals court eventually dismissed the case in January 2020. But in June, Judge Aiken reactivated the case after attorneys for the youth plaintiffs revised their complaint and narrowed their requested relief, which set the case back on track towards trial. Eight years after the case was filed, Department of Justice lawyers are once again fighting to stop it from getting to trial. But the devastating impacts of the climate crisis – from horrific wildfires to disastrous floods and deadly heat – are only becoming more intense and the climate science demanding urgent action is becoming more irrefutable, Merner said. “As there continues to be delay tactics through various dismissal attempts or appeal processes, as time goes by, the reality of climate change is worsening,” she said. And the science and our understanding of it is getting stronger.” Story originally published in DeSmog
As more than two dozen climate liability lawsuits by state and local governments against fossil fuel companies continue to progress, a case brought by the city and county of Honolulu could become the first to put Big Oil on trial. On Thursday, the Hawaii Supreme Court heard arguments on an appeal by the defendants, which include oil majors such as ExxonMobil and Chevron, to dismiss the suit – a move that a trial court rejected in March 2022. The hearing, which lasted just over an hour, marked the first time the court had been in session since the devastating wildfires in Maui. The session opened with a moment of silence for the victims, at that point numbering 111 confirmed fatalities – a number state officials say will surely rise. It’s not yet clear how much climate change has played a role in the Maui fire disaster, which was related to unusually windy and dry conditions on the island. Scientists say that global heating, driven primarily by fossil fuel combustion, has contributed to more arid conditions in many locales, including Hawaii, and made vegetation more flammable. The Thursday hearing centered on the fossil fuel defendants’ contention that federal law, not state, applies to the case. Honolulu’s lawsuit is similar to litigation against tobacco and opioid manufacturers, because it seeks to impose liability on fossil fuel companies for knowingly promoting and selling a harmful product, and lying about the harms to the public. Arguing for the oil companies, attorney Theodore J. Boutrous, Jr., of the firm Gibson, Dunn & Crutcher, stated that given the global nature of the climate problem, state law cannot apply. If Honolulu prevails in the case, Boutrous argued, “Hawaii tort law would become the policing mechanism for the entire world regarding marketing of oil and gas products.” He said the case belongs under federal law because it involves global greenhouse gas emissions, which the U.S. authorizes the Environmental Protection Agency (EPA) to regulate under the Clean Air Act. However, attorney Vic Sher of the law firm Sher Edling – which represents Honolulu as well as a handful of other municipal plaintiffs in climate lawsuits – countered that the federal Clean Air Act “does not provide a safe haven for international corporations to dissemble and lie about their products.” Because the oil and gas companies do business in Hawaii, Sher argued, they can be held accountable in Hawaii. “If they don’t want to be hauled into court in Hawaii, they could choose not to do business here,” he said. “This is a big case, and it’s an important case,” Sher stated in his concluding remarks, but “those factors don’t make this case either a federal case or one we’re not entitled to prove.” The court did not make any immediate ruling, but said it would take the matter under advisement. The Honolulu lawsuit was initially filed in Hawaii’s First Circuit Court in March 2020. The city and county brought state common law claims of nuisance, trespass, and failure to warn against Exxon, Chevron, Shell, BP, Marathon Petroleum, ConocoPhillips, and other oil and gas companies for allegedly concealing the true harms of their products on the climate system, as well as engaging in coordinated disinformation campaigns to stave off climate policy responses and protect profits. This deceptive conduct, the lawsuit contends, has made Honolulu more vulnerable to climate change impacts like sea level rise, coastal erosion, extreme heat, and severe storms and flooding. Honolulu wants the companies to help pay the costs of recovering from and adapting to these impacts, which are estimated to be on the order of billions of dollars. After the oil companies appealed the trial court’s decision denying their motions to dismiss the lawsuit, trial court Judge Jeffrey Crabtree issued a pause on most evidence-gathering in the case. However, his order allowed for “limited and necessary discovery” as well as actions to “lay the infrastructure or groundwork” for the discovery process to proceed promptly if the appeal fails. If Hawaii’s highest court does rule against the companies’ latest appeal, it will put the case on track towards comprehensive discovery – including interviews with key witnesses and obtaining internal oil industry documents – and a trial date. “It’s definitely the case to watch. It’s out in front of all the others,” said Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School. Honolulu’s climate case, Parenteau told DeSmog, “has the best chance of getting to trial first” because it is furthest along procedurally among cases seeking to make Big Oil pay for steep climate-related costs incurred by local and state governments. A case bought by Massachusetts against ExxonMobil is also on track towards trial, and is starting the discovery process. The Massachusetts lawsuit is among a handful of climate cases charging oil companies with violating consumer fraud laws and not seeking to recover climate costs. In October 2020, Maui County also brought a climate liability lawsuit against fossil fuel companies. In its complaint, Maui noted that “wildfires are becoming more frequent, intense, and destructive in the County.” The oil companies in the Maui lawsuit have asked the state trial court to dismiss the case. A ruling from the Hawaii Supreme Court upholding the trial court’s order rejecting defendants’ bids to dismiss Honolulu’s case will likely diminish their chances of success. There is a pretty good chance the Hawaii Supreme Court could rule in Honolulu’s favor, according to Parenteau. “I’m expecting we’re going to see a fairly robust opinion in the case,” he told DeSmog. “The combination of what’s happening in Hawaii, factually, damage-wise, and the fact that I think you’ve got a progressive judiciary that is open to these kinds of claims, that’s a pretty good set of circumstances for a success.” Story originally published in DeSmog A Montana court ruled in favor of 16 young people who put their state government on trial in June in the first constitutional climate trial in U.S. history. In an order issued Monday, Judge Kathy Seeley in the First Judicial District Court of Montana found that the state had violated youth plaintiffs’ constitutional rights, including the right to a clean and healthful environment, because of Montana’s pro-fossil fuel policies, which require the state to disregard climate change and greenhouse gas emissions in environmental reviews. “As fires rage in the West, fueled by fossil fuel pollution, today’s ruling in Montana is a game-changer that marks a turning point in this generation’s efforts to save the planet from the devastating effects of human-caused climate chaos,” Julia Olson, chief legal counsel and executive director of Our Children’s Trust, a nonprofit law firm that represented the youth plaintiffs, said in a statement. “This is a huge win for Montana, for youth, for democracy, and for our climate. More rulings like this will certainly come.” The Held v. State of Montana case, first filed in 2020, argued that Montana’s longstanding actions and policies supporting fossil fuel development — despite clear knowledge of the climate consequences — contribute to environmental degradation and violate the young plaintiffs’ rights to a “clean and healthful environment.” Montana’s constitution explicitly grants that right, as do some other state constitutions, like Pennsylvania’s and New York’s. Montana’s constitution also extends it and other inalienable rights to its youngest citizens. During Montana’s 2023 legislative session, which ended in May, the Republican supermajority passed a number of bills that weaken environmental protections. This included a controversial amendment to the Montana Environmental Policy Act (MEPA) that some had called the “most aggressive” anti-climate bill in the nation. That law, House Bill 971, dubbed the “MEPA limitation,” expressly prohibited state agencies, including the Montana Department of Environmental Quality, from evaluating greenhouse gas emissions in environmental permits. As the Held case went to trial, the question of this statute’s constitutional compliance was front and center. In her decision, Judge Seeley left no doubt that H.B. 971 was “unconstitutional on its face.” Her order overturns it, as well as another related piece of new legislation, Senate Bill 557. This bill bars MEPA litigation brought against the state on climate grounds from thwarting or delaying any permitting or authorization. “This ruling, this case; it is truly historic. We are heard,” 18-year-old plaintiff Kian Tanner said in a statement. “Frankly the elation and joy in my heart is overwhelming in the best way. We set the precedent not only for the United States, but for the world.” Montana Democratic state Senator Mary Ann Dunwell, whose district covers eastern Helena, told DeSmog that the ruling sends a strong message to her Montana legislature colleagues who are climate deniers. “It states in our constitution that the legislature has a responsibility, it’s our job to make sure that we uphold that right to a clean and healthful environment,” she said. “The majority Republican legislature these past two sessions has violated that.” “To me it’s vindicating, this ruling is vindicating,” Dunwell added. “The youth had a strong case and frankly the state had a very weak one.” In its narrow defense presented in just one day, state attorneys steered clear of engaging in climate science. To the extent the state did discuss climate impacts, it claimed that Montana’s emissions “are simply too minuscule to make any difference.” The Montana attorney general’s office did not reply to a request for comment from DeSmog. The office sent a comment to Montana’s ABC/Fox News website stating that, “the ruling is absurd,” and the trial was a “weeklong taxpayer-funded publicity stunt” that showed Montana has “no impact on the global climate.” The comment noted the state will appeal. But Seeley’s ruling recognized the scientific fact that every additional ton of greenhouse gas pollution emitted exacerbates climate impacts. “Montana’s GHG [greenhouse gas] emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury to the Youth Plaintiffs,” she wrote. The decision further affirmed that Montana’s right to a clean and healthful environment includes climate, as a stable climate is “part of the environmental life-support system.” Inspiration for Similar Climate Lawsuits Professor Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, called the ruling “the strongest decision on climate change ever issued by any court.” “After a trial where climate scientists testified under oath and were subject to cross examination (very rare in itself), the court issued a 103-page decision that found that fossil fuel use is the principal cause of climate change, which is in turn causing serious health and environmental impacts that will continue to get worse,” he wrote in a statement emailed to DeSmog. He added that the court found that renewable energy, like wind, solar, and hydro, can economically substitute for fossil fuels. This ruling “may inspire similar lawsuits around the world,” Gerrard said. Another youth-led climate case spearheaded by Our Children’s Trust will be going to trial next summer in Hawaii, the scene of the deadliest wildfire disaster the United States has seen in more than a century. Like Montana, Hawaii also has the right to a clean and healthful environment embedded in its constitution, and this case involves climate pollution authorized by the state’s Department of Transportation.
“This [Montana] decision could have an impact on the OCT case pending in Hawaii, which is scheduled for trial in 2024 and it may well inspire other cases in states like Pennsylvania and New York with similar constitutional provisions,” Patrick Parenteau, professor of law emeritus and senior fellow for climate policy at Vermont Law and Graduate School, told DeSmog. “The [federal] Juliana case has inspired youth lawsuits in other countries like Germany, France, and Columbia, as well as the European Court of Human Rights, and this decision is sure to spur even more.” Climate lawsuits seeking to hold a state transportation agency and major fossil fuel producers accountable for contributing to the climate crisis are moving forward in Hawaii.
The state is currently reeling from devastating wildfires on the island of Maui that have destroyed the town of Lahaina and killed at least 93 people – the deadliest wildfire disaster the U.S. has seen in over a century. Scientists say global heating driven largely by fossil fuel combustion contributes to drying conditions that makes vegetation more flammable. Climate change generally enables fires to burn more intensely and over larger areas, and is an important factor in worsening the devastation from the Maui wildfires. While the lawsuits underway will not provide relief for this disaster, they are part of the larger global effort to hold governments and corporate polluters accountable for exacerbating climate harms. As climate journalist Amy Westervelt explains in a recent piece, “accountability isn't just ‘a’ climate solution, it actually has to be the first one.” Climate litigation is surging around the world and is a critical tool for advancing climate justice, according to a new report from UN Environment Programme (UNEP) and the Sabin Center for Climate Change Law. “People are increasingly turning to courts to combat the climate crisis, holding governments and the private sector accountable and making litigation a key mechanism for securing climate action and promoting climate justice,” UNEP Exective Director Inger Andersen said. In Hawaii, where the transportation sector is the largest source of greenhouse gas pollution in the state, a group of fourteen young people have brought a climate accountability lawsuit against the Hawaii Department of Transportation. By continuing to operate a carbon-intensive transportation system and not acting swiftly to slash transport emissions in line with Hawaii’s ambitious climate goals, HDOT is contributing to worsening climate change and violating the youth plaintiffs’ constitutional rights, including the right to a clean and healthful environment, the lawsuit contends. The youth-led case, Navahine F. v. Hawaii Department of Transportation, is headed to trial next summer. New trial dates were recently announced – June 24 to July 12, 2024 at the Environmental Court of First Circuit in Honolulu. It will be just the second constitutional climate case to go to trial in U.S. history, following the landmark trial in the Held v. State of Montana case in June 2023. Two other climate cases in Hawaii are also on track towards trial. These cases target major oil and gas companies such as ExxonMobil, Chevron and Shell, arguing the companies engaged in a longstanding climate disinformation campaign to protect profits and block or delay climate action. Plaintiffs Honolulu (city and county) and Maui (county) brought their cases in March and October of 2020, respectively, against fossil fuel defendants. The lawsuits are currently pending in Hawaii state court after surviving attempts from defendants to force the cases in federal court. Maui’s case is awaiting a decision on defendants’ motions to dismiss. Honolulu’s case is a bit further along as the state trial court has already denied defendants’ motions to dismiss; defendants have appealed and the Hawaii Supreme Court will hear the appeal this week on August 17. Climate-related disasters are increasingly wreaking havoc across the United States and around the world, and Hawaii is no exception. The islands are especially vulnerable to sea level rise, flooding, and severe storms, and they are also experiencing extreme heat, drought and deadly fires. In its complaint, Maui County referenced worsening wildfires as one of the climate impacts it is seeing. “Wildfires are becoming more frequent, intense, and destructive in the County,” the complaint states. The Center for Climate Integrity, which advocates for holding climate polluters accountable, says that Maui’s current wildfire disaster makes its lawsuit against oil and gas majors “increasingly relevant.” “Maui residents are currently suffering mass evacuations, the loss of loved ones and homes, and cultural and economic destruction that will be felt for years to come — it’s cruel to stick them with the bill to clean up and recover from a disaster made worse by Big Oil's lies,” CCI said in a post. “Maui communities have already paid more than enough; it’s time for Big Oil to stand trial for their climate deception.” |
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