Governing.com, July 31, 2018
Rhode Island is using new tactics to hold fossil fuel companies responsible for disaster-related infrastructure damage.
As hurricanes, wildfires and floods have picked up in number and intensity, courtrooms have become an increasingly popular battleground for governments hoping to hold fossil fuel companies accountable.
The number of U.S. cases involving climate change increased from one filed in 2001 to nearly 100 in 2016, according to a database compiled by Columbia University’s Sabin Center for Climate Change Law and Arnold & Porter Kaye Scholer LLP.
So far, climate change lawsuits brought by cities have had limited success. Some environmental legal experts say that Rhode Island's new lawsuit could turn the tide.
Rhode Island is the first state to sue fossil fuel companies for infrastructure costs due to damage from global warming. Its unique claims "open the door to some interesting possibilities," says Vicki Arroyo, executive director of the Georgetown Climate Center. “There are some novel, new theories [in Rhode Island's lawsuit]. And there’s a lot more information about what these companies knew and what they did ... since some of the earlier cases."
The lawsuit names 21 defendants, including some of the world's largest fossil fuel companies -- ExxonMobil, Chevron, BP and Shell. The 142-page document cites existing damage and future threats to Rhode Island residents and infrastructure, including roads and bridges. According to the complaint, the state “seeks to ensure that the parties who have profited from externalizing the responsibility for sea-level rise, drought, extreme precipitation events [and other consequences of global warming] bear the costs of those impacts on Rhode Island.”
In eight counts, the lawsuit accuses the companies of violating state law surrounding public nuisance and failure to warn the public about potential threats, among other things.
One of the more interesting counts is the claim for "impairing public trust resources," says Richard Ahrens, an environmental lawyer with the midwest regional law firm Lewis Rice. A state is particularly well-situated to make that claim, he says, because it can invoke the "public trust doctrine," which holds the government responsible for managing natural resources, such as air, land and water, for the benefit of the people.
The success of these claims could be determined by which court hears the case. Shortly after Rhode Island filed its lawsuit, Shell requested the case be moved from state to federal court. If it's kept in federal court, Rhode Island could run into some challenges.
Judges have ruled in past cases that federal laws and regulations supersede state law claims, says Michael Gerrard, director of the Sabin Center. One example is the 2011 U.S. Supreme Court ruling in American Electric Power Company v. Connecticut, which stated that the Environmental Protection Agency, not federal courts, is responsible for regulating greenhouse gas emissions.
About 11 cities and counties have filed lawsuits similar to Rhode Island's. San Francisco and Oakland, Calif., for example, sued fossil fuel companies for environmental damages last year. Those cases were removed to a federal court where they were dismissed by a judge in June.
The global nature of climate change is one reason these cases often get bumped up to the federal system, says Maxine Lipeles, director of the Interdisciplinary Environmental Clinic at the School of Law at Washington University in St. Louis.
But regardless of the reasons, a federal court could determine that the EPA is better suited to address Rhode Island's concerns.
"The people who make [climate change] decisions are politically accountable. Congress is accountable. The White House is accountable,” says Lipeles. "The courts are insulated from that so they tend to shy away from what they think of as policy decisions that should really be made by politically accountable people."