“Courts are a new front line of climate action with cases against governments and oil firms spiralling, and while victories have so far been rare, the pressure for change is growing,” as reported in a recent article published in The Guardian. Climate litigation is poised to score breakthroughs as people and groups seek to assign responsibility for climate impacts to the fossil fuel industry. Predictably, Big Oil is fighting back hard by saying that climate change is the fault of the consumer.
We at Below2°C are pleased to add Climate Liability News to our list of guest contributors. Climate Liability News reports on “the issues at the intersection of climate change impacts and law.”
Big Oil Contends Climate Change Is Our Fault
Credit: Wikimedia Commons, MarkBuckawicki
One question keeps popping up as U.S. courts begin to wrestle with climate liability cases that have been filed across the country: Are oil companies that drill for, process and distribute fossil fuels responsible for climate change, or does the blame fall on consumers who use these fuels as energy and release carbon dioxide emissions that warm the atmosphere? Does their use of the product ultimately make consumers, rather than the oil companies, responsible for sea level rise and melting glaciers?
This question arose most recently in a federal court’s dismissal of two California cities’ suits against five oil companies. Having benefited since the Industrial Revolution from modernization and advancement powered by coal and oil, wrote U.S. District Judge William Alsup, “would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”
The lawyers representing San Francisco and Oakland did not appear ready with a quick answer in Alsup’s hearing, and a similar void happened when Judge John Keenan asked a similar question in the hearing on a motion to dismiss New York City’s liability lawsuit earlier this month. Other experts, however, say the question itself makes the false assumption that consumers had a choice.
Do Consumers Really Have a Choice?
“Consumers aren’t demanding fossil fuel energy, they’re demanding energy,” said Peter Frumhoff, director of science and policy at the Union of Concerned Scientists. “Polls show that people really want clean energy. But the choices we make are constrained by the options available to us, which have been constrained by the oil companies’ lobbying for subsidies and against emissions limits, and by their recalcitrance to invest in clean energy.”
“But for the actions of these companies and their friends in Congress, consumers would have very different energy choices today,” he said. “Imagine if, when Exxon and other fossil fuel energy companies first knew about the effects of emissions on climate change, they had come clean about the risks, accepted limits on emissions and invested in clean technologies. Imagine the choices we would have today.”
Instead, he noted, Exxon actively sought to deceive the public. According to a major report by UCS in 2007, the oil giant spent nearly $16 million “to fund skeptic groups and create confusion around the certainty of global warming.” There is significant evidence that the funding of denial groups has continued, and Massachusetts and New York are each investigating whether Exxon committed fraud under state laws.
Alex Davis, who studies the behavioral foundations of public policy, likened Exxon’s deception on climate change to that still used by tobacco companies. “The main issue is whether there was sufficient evidence available, and if they shared what they knew with the public. Were they profiting off people’s ignorance rather than profiting off their willingness to make a trade-off?” said Davis, an assistant professor at Carnegie Mellon University’s Department of Engineering and Public Policy.
Even if there had been no efforts to mislead the public, the notion that consumers have demanded fossil fuels doesn’t hold up, Davis said. “It’s not the responsibility of the individual consumer to say, ‘Well, I’ve done my lab tests and come to the conclusion that the costs outweigh the benefits,’ “ he said. “These are very complicated questions and systems.”
“If you place clean energy in front of people as an option, they say, ‘We want it and we’re willing to pay more for it. But it’s implicit that they even have the information. Unless they’re aware of available alternatives, they’ll go with the cheapest option.”
The Consumer’s Role
The issue of consumers’ role in climate change comes up in climate liability suits because “finding an activity a nuisance requires balancing the benefits of the activity against its harm,” Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, wrote in an email. “So at some point, the role of fossil fuels in benefiting consumers is likely to come into play.”
Judge Alsup “did not actually balance the harms and benefits of fossil fuel extraction, marketing and consumption. He raised the issue, but said he didn’t need to settle it because he could dismiss the case on other grounds,” Burger said.
If future cases do perform a cost-benefit analysis, courts shouldn’t start their tally with the dawn of industrialization, Davis said. “During the industrial revolution, we were ignorant of the costs. But once society knew there were costs, [the companies] were liable. The degree to which you can attribute costs is a difficult question, but that doesn’t mean those costs are zero.”
Major studies have emerged in recent years tying fossil fuel companies to the emissions their products have created and the percentage of global warming that has resulted from each. The Carbon Majors report used data to determine that 71 percent of modern global warming was driven by 100 companies.
The New York Case
Another reason the question of consumer rights is invoked is that “consumers are polluters, and that may inhibit some plaintiffs in some cases,” Burger said. “In the New York case, defendants have argued that NYC’s use of fossil fuels means it has ‘unclean hands, and therefore can’t bring a nuisance claim.”
Keenan, the judge in New York City’s climate liability case, asked whether the city had benefited from fossil fuel use or had itself contributed to climate change. The city announced it plans to divest its portfolio of shares in fossil fuel-based industries. It does use fossil fuel-powered police cars and fire trucks.
“The notion that New York City has dirty hands is ridiculous,” Frumhoff said. “Every municipality would choose clean energy if they could, but we’re decades behind where we could have been if the fossil fuel companies had not maintained an iron grip on our energy policy.”
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If Big Oil takes the position that climate change is the fault of consumers, then by virtue of this they also take the position that climate change is real.
If this is indeed the case, then would it not be incumbent upon – and a responsibility of – Big Oil to help wean the world off of not just oil, but coal and natural gas (or at least help find a way to produce natural gas in a more environmentally responsible manner) as well, if we are all in this together, which we are? And we should never lose sight of the fact that those who work in the industry contribute to climate change because, I would argue, they too are consumers of the oil and petroleum (and petroleum byproducts) they produce – meaning such buy and drive motor vehicles with internal combustion engines that derive their power from gasoline and diesel fuel.
Alan – I agree with your observations but I would also add that the consumer makes choices on the basis of what source of energy is available at the time. Many of us in the past converted our heating from furnace oil to natural gas because it was both more efficient and less expensive. I’ve never bought an EV because electric vehicles have only recently become affordable and available.
Consumers in the past could only choose between oil, gas, natural gas or coal. One of the reasons for that is the work of the fossil fuel industry behind the scenes to block progress on renewables by lobbying politicians, spreading misinformation and paying tons of money for marketing campaigns blocking the transition to a clean energy platform.
This is starting to change and the sooner the better. The fossil fuel industry will die a slow grinding death which it deserves.
Thank you for your comments.
Awesome summary of the court cases Rolly, I was disappointed in what news clips I has seen recently. I’ve got hopes on these court actions will have a real impact on climate. Dr. James Hansen first drew my attention to the third branch of government, the judicial, as a last resort source of climate action. I still follow Our Children’s Trust, a case his granddaughter Sophie is a part of, and I believe that case is still going forward in a constitutional case against the US federal government. Still waiting on publication of the book by Hansen “Sophie’s Choice”. Keep on writing !!!!! 🙂
As a solar panel, electric car, near (and getting closer) net zero home owner, would I have standing in a suit against the fossil fuel industry? My hands are not dirty.
Vincent – welcome to Below2C.
Are you making the case that one would have a better chance of putting the blame on the fossil fuel industry if one were using renewable energy as opposed to oil/gas/coal based energy? In other words, now that renewable energy is available, people are making that choice whenever possible. And we could not make that choice before the emergence of renewables. We had to rely on fossil-fuel-based energy. Hence, the oil industry was to blame particularly because it suppressed and blocked efforts by governments to transition away from fossil fuels. The fossils spend billions to preserve the status quo – they are to blame. Period.
Thanks for your comments
Les – Thanks for your comments.
Like you, I”m also disappointed that a few quite prominent cases (New York City versus 5 oil companies) have been denied by the courts. However, that is far the end of it. These will be challenged to higher courts and some all the way to the Supreme Court.
But there are hundreds of cases popping up around the globe. I want to do an article on this sometime soon. There is so much to do. If you have a particular interest in this aspect of climate change and if you do some research on it, please keep me in the loop. That could be quite helpful.
Has anyone successfully sued a government?? I’m thinking in terms of class action.
Looking forward to a reply.
Poised to go into action! ??
Hi Laurel – welcome to Below2°C.
I don’t know of any national government suing for climate damages but other government levels have. New York City and others have sued for climate damages. And Rhode Island, a US state has become the first state to sue for damages. I think this is just the beginning.
Thank you for your comments.