Climate Suits Pushing Tort Law Into Uncharted Waters

get a little more specific. Who pays to fix the flooded roads, Who pays to put out the wildfires? Who pays to dig deeper wells when droughts hit? It's the cities, and now a couple dozen cities here in the US are saying they shouldn't be the ones left holding the bag. New York, San Francisco, DC, Baltimore. They're filing civil suits against some of the biggest names in the fossil fuel industry.

These suits say companies like Exxon, Chevron, BP, Shell and others not only cause climate change, but have known about it for decades and deliberately covered it up. For today's episode of the podcast, we're hearing from Katie Jones and attorney representing these cities, and Ted Boutros, an attorney representing one of the defendants. First the plaintiff side of the story, and we hear from San Francisco based attorney Katie Jones.

She and her firm share Edling are seeking damages from the fossil fuel industry on behalf of her municipal clients. Jones told us about the basis of the climate suit she's working on and about how they're taking an old legal concept, the tort, and pushing it to a place it's never been before. Our work arises out of the idea that courts provide an even playing field to take

on the biggest polluters and the most powerful companies. It's kind of the basic idea that they shouldn't be allowed to make everyone else pay for the damage caused by their pollution, and so share Edling right now represents sixteen of the twenty four state and local government case around the country that have filed climate damage and deception lawsuits. Shad Ling helped San Mateo County, Marin County, and the City of Imperial Beach in California file the first cases

in this new wave of litigation. Back in July twenty seventeen. And let's talk about who the defendants are. These are our household names. I would say, yeah, if you've ever bought gas from Chevron Shell BP, these are the names. So let's talk about the legal theory at play here.

You know, I get the sense this is kind of novel, you know, a novel area that you're sort of pursuing this idea that the fossil fuel companies deceive the public in terms of the impact of climate change, and therefore the municipalities have a right to file a suit against these companies. Is that Am I getting that right? Yeah? That's right. And the broad stroke these lawsuits file into kind of two bucks that overlap and support each other.

Many of them are brought under state common law claims like public nuisance and failure to warn, and then some are also brought under state consumer protection lawsuits founded in the idea that it's against the law and it's a deceptive business practice to deceive the public about risks, especially where they're known risks that the industry knew about. And so in the first bucket, I brought up public nuisance law. Public nuisance is somewhat obscure at least to the public.

There's no law and order public nuisance series, and even lawyers encounter public nuisance in law school and maybe never think about it after passing the bar exam. But it's an area of law with a long history and with strong legal underpinnings evolving throughout American law, and public nuisance is particularly important in environmental cases. Is a long history of public nuisance being used to stop or to remedy pollution of air or water, or the kind of harms

that are caused by externalities of corporate activity. And I get the sense that a really key aspect of these suits that you're filing is that it's not just that the fossil fuel companies, you know, their actions led to climate change. Is that it seems like you guys have some evidence that they knew that was happening for years before you know, the rest of the public did. Is that aspect of like what they knew and when they

knew it, that seems like an important angle to your suits. Absolutely, Yeah, these laws are about using existing legal tools to force major players in the fossil fuel industry to internalize some of the harms from the biggest externality problem facing our world the climate crisis, and the key issue there is

what they knew and when they knew it. In twenty fifteen, investigative journalists at the LA Times and Inside Climate News broke stories based on Exon and other fossil fuel company archival documents that show primarily that they knew that fossil fuels were causing climate change, and that Exxon and other fossil fuel companies were studying it extensively starting as early

as the nineteen seventies. Well, I'm glad you brought that up because one of the things I wanted to talk to you as I was doing a little bit of research, and people have kind of compared this to the tobacco cases from the late nineties, where there was, you know, there was a famous settlement between the tobacco companies and a lot of the state attorneys general, and that also got into some of the same issues about what the

companies knew when they knew it. Do you think that do you think that that's an apt comparison that your cases are following the model of those tobacco cases, or is this different. I think it's an absolutely comparison. The fossil fuel industry was, you know, using a page out

of the Big Tobacco playbook. Big Tobacco had famously said that doubt is their product, and you know, they, in comparison, the fossil fuel industry was using and weaponizing doubt against the public to confuse the issues, to confuse whether climate change actually existed, how serious it was, and whether their

products had anything to do with it. You mentioned that a lot of your suits are based on kind of basic concepts of law, like nuisance and you know, deceptive business practices, but I think they've never really been applied to climate change specifically. Given that, like, how are these suits going. Are you getting receptive audiences in courtrooms? Or are you getting judges who say, like, what's this? We've never seen this before? You know, climate change nuisance? What's

going on? Climate change is a new type of harm. And the thing about the common law about claims like public nuisance or failure to warn is that it is always adapting to serve the interests of justice, and it's judge made law that can adapt to suit the types of harms that we see. And to provide some background on the status of these cases, the main legal battles so far have been over whether they should be heard in state court where they were filed or federal court,

where the fossil fuel companies tried to move them. But I get the sense that the Supreme Court may be about to weigh in on this. That's correct. The Supreme Court heard one of those cases last month, in the City of Baltimore's climate damages case, But the Supreme Court's review was limited to a fairly arcane procedural question about the scope of an appellate court's review in that case. One news article described it accurately, I think as the

kind of argument only a lawyer could love. So the arguments right now have dealt with these procedural issues, and so while the Supreme Court's decision in Baltimore could impact the timeline for that case how quickly Baltimore in the other cases can get back to state court, it likely won't say anything either way about the actual merits of

the case. Now we hear how things look. According to one of the defendants, Ted Boutros is a Los Angeles base attorney with the firm Gibson Dunn, and he's represented Chevron for over a decade. Buchos addressed the internal documents that Jones referenced. That argument that she was making has been something that was included in their earliest come plants, and they've every time they've actually had to show it

in court, they've it's fallen apart. I raised the issue that they had been making in this argument that there was hidden documents and cover up, and the judge asked to see to of the documents that they had been citing, and so they produced them and it turned out they were public public information. They were widely disseminated, and different companies were looking at climate from different angles. Chevron didn't

have an in house science team focusing climate. Chevron has looked to the IPCC, the global scientists, and the government's assessment here, and this has been widely to bed. I was watching an old movie a couple of weeks ago, and it was a nineteen fifty eight movie with Carrie Grant and Ingrad Bergman, and Carrie Grant's character says, they say, the climate's changing, it's getting warmer. So this isn't some state secret. This is a widely debated public policy issue.

Chevron agrees we need to have solutions about regarding climate change and grapple with these issues and litigation like this, these just you know, off the wall claims. There's just no basis for these torque claims in state court or federal court. We think if they belong anywhere, it's federal court, because these are federal, national, global issues for the federal government to grapple with. Chevron supported the Paris Agreement and now we're back in, which is something I'm glad about

from personal perspective. So these lawsuits I think are really a way to just really confuse and are the public and their counterproductive. Well, and I'm glad you brought that up because one of the things that came up most recently in these lawsuits are the issues of state court versus federal court. That was an issue that was recently argued at the Supreme Court. Can you explain a little bit more why you think these belong in federal court? Sure,

really is an important issue. It flows from our constantutional structure, and one state cannot impose damages or punitive damages or remedies or regulate activities that occur outside the state or let alone outside the country. That's where the federal government comes in and the Supreme Court has made very clear going back decades and decades that where a claim hinges on interstate or international airflow or pollution, those arise under

federal common law. In the AEP case, which was the Court's rejection of a climate change tourt about a decade ago, Justice Ginsburg growth for the Court that these claims have

federal character because of the scope of the claims. And so we think that that authority means that if these claims go forward anywhere, has to be in federal court, and we think the result would be the same in state court, that states would have to rule that they cannot regulate this behavior as a federal constitutional matter, that

their tort law doctrines don't apply. Finally, I wanted to, you know, ask you about the sort of fundamental idea that is lying beneath these claims that the cities and the states that are the plaintiffs in these cases are incurring pretty significant costs as a result of climate change, whether it's from you know, fixing flooded road or you know,

having to you know, repair storm damage. You know, I take it you don't believe that the fossil fuel industry and Chevron in particular should have to pay for those those costs. But who should I mean, where should the money come from to to help these these cities and states deal with the cost of climate change or should they be on their own? We really are all in this together, and this can't has come up in a

couple of the cases. For example, in New York City, uh we had a case in an argument and the district judge there Keenan pointed out that New York itself is a huge consumer of oil and gas, and the police cars outside are using gasoline, and they're massive consumers who are participating and creating, participating in the activities that

can lead to climate change. The City of San Francisco, while it was making these claims about harms and costs of climate change in their bond offering documents around the same time that they filed the lawsuit against Chevron and other companies, declared that they that there were no risks that could be assessed in terms of cost based on

climate change. So when they're trying to sell bonds, they're saying there aren't significant costs, and so it's really a cop out for cities and counties to try to sue companies that are producing products that we all need for modern life to continue at the current moment and claim damages they're participating it. We all are under the theory of this case, You and I and everybody else, we're all liable for a tort because we all know about

the science and we're still participating in these activities. So it just doesn't hang together. And so what we do need to all work together to come up with solutions that can mitigate climate change and create other sources of energy. That's the way to do it. And so in terms of who bears the costs, it's a policy issue for Congress, for other governments to come together, but we do need to be serious about it. We also reached out to

the other defendants in these lawsuits. Shell echoed a lot of Buchos's points, saying through a spokesperson that Shell's position on climate change has been quote a matter of public record for decades, and that the company thinks that the courtroom is not the right venue to tackle this problem. No other defendants responded to our emails. That'll do it for today's episode of Parts for Billion. If you want more environmental news, check us out on Twitter. We use.

It pretty easy to remember handle It's at Environment. Just that at Environment, I'm Davy B. Schultz. If you want to chat with me about anything and everything. Today's episode of Parts Rebellion was produced by myself and Josh Block, special assistance from Tom Taylor. Pars Rebillion was created by Jessica Coombs and Rachel Dagel. The music for today's episode is a Message by Jazar and City of God by Louis Edwards and Henry Parsley. They were used under a

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