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.”