Yesterday, July 17, 2017, two California counties and a city filed lawsuits in California state courts claiming that thirty-seven oil, natural gas, and coal companies caused climate change-related damage to residents, businesses, and the environment by extracting and selling fossil fuel products, resulting in greenhouse gas emissions. The complaints allege various state common law tort claims, including public nuisance, private nuisance, negligence, and trespass.
According to the complaints, “Defendants have promoted and profited from a massive increase in the extraction and consumption of oil, coal and natural gas, which has in turn caused an enormous, foreseeable and avoidable increase in global greenhouse gas pollution.” The complaints argue that these increased greenhouse gas emissions “have substantially contributed to 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.”
These appear to be the first major cases based on state tort law to address alleged damages related to climate change. The cases likely were prompted by recent court decisions holding that such claims cannot be brought in federal courts. In 2011, the U.S. Supreme Court held that the Clean Air Act “displace[s] any federal common-law right to seek abatement of carbon-dioxide emissions” from companies because the Act delegates management of greenhouse gas emissions to EPA. See AEP v. Connecticut, 564 U.S. 410 (2011). In Kivalina v. ExxonMobil Corp., the U.S. Court of Appeals for the Ninth Circuit held that similar reasoning precludes federal common law climate change claims for damages. 696 F.3d 849 (9th Cir. 2012).
Although the lawsuits target energy extraction companies, similar state common law tort claims over greenhouse gas emissions could be brought against electric generating units in the future.