California Counties and City Sue Energy Companies over Climate Change, Sea Level Rise

Kelley Drye & Warren LLP

Using a legal strategy resembling the one that won multi-billion dollar awards from tobacco companies, two California counties and one California municipality filed coordinated environmental lawsuits in California state court, blaming 37 oil, gas and coal companies for causing climate change and rising sea levels that threaten communities on the California coastline.

In separate lawsuits filed in different superior courts on July 17, 2017, San Mateo and Marin counties and the city of Imperial Beach allege a host of state common law claims, including public nuisance, failure to warn, and trespass. The companies accuse the energy companies of hiding for nearly 50 years that fossil fuel production was raising global temperatures and causing sea level rise.  The plaintiffs claim that companies knowingly carried out a “coordinated, multi-front effort to conceal and deny … those threats” by allegedly discrediting scientific evidence about climate change and sowing doubt among regulators and the general public.

The defendants “promoted and profited from a massive increase” in the use of fossil fuels, which “caused an enormous, foreseeable, and avoidable increase in global greenhouse gas pollution” that has led to a “a wide range of dire climate-related effects, including global warming, rising atmospheric and ocean temperatures, ocean acidification, melting polar ice caps and glaciers, more extreme and volatile weather, and sea level rise,” the plaintiffs say.

The public nuisance claims resemble the lawsuits that states and cities brought against tobacco companies in the 1990s. But similar lawsuits have fared poorly against energy companies so far.  The Supreme Court blocked a lawsuit filed by nine states against six major energy companies in 2011, and the Ninth Circuit provided different grounds in 2012 for tossing a suit by a tiny Alaskan village against 22 energy companies.

Each lawsuit provides roughly a dozen pages of scientific information, charts, and tables showing that the use of fossil fuels increased greatly over the past 50 years, and tying that increase to rising pollution, temperature, and sea levels. The municipalities say the 37 defendants “are directly responsible for 227.6 gigatons of CO2 emissions between 1965 and 2015, representing 20.3 percent of total emissions of that potent greenhouse gas during that period.”

Each lawsuit devotes another 30 pages to assertions that the defendants, particularly ExxonMobil, knew fossil fuels were warming the globe and raising the sea level as early as the 1960s, but tried to obscure the information to profit from it.

The plaintiffs seek injunctive relief and damages associated with alleged future environmental impacts caused by climate change. More than 12,000 Marin County homes, businesses and institutions could be hit by high tides and floods, costing as much as $16 billion by the end of the century, according to a statement from the plaintiffs’ law firms.

These cases will likely face early dispositive motions seeking to have these cases dismissed at an early stage. We will continue to monitor these cases and provide additional updates.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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