By Andrew Gage
The past few weeks have seen a couple of important developments in the U.S. court cases brought against fossil fuel companies for the costs of climate change.
First, on May 15th and April 24th, the U.S. Supreme Court refused applications by fossil fuel companies to halt climate lawsuits filed against them by state and local governments. This means these cases, which are aimed at recovering climate costs, will continue.
And on May 12th, a group of Attorneys General representing 16 states filed submissions in San Francisco and Oakland’s case against fossil fuel companies.
What do these developments mean for Canada and for BC’s Sue Big Oil campaign, which is pressing local governments here to file similar lawsuits?
What happened in the U.S.?
To recap, there are now more than 40 local and state governments in the United States suing fossil fuel companies for a share of the costs of that they are incurring due to climate change. They are doing so under a wide range of legal theories.
So far, most of these cases have not moved forward very quickly, because the fossil fuel industry has been claiming that the lawsuits were filed in the wrong courts (this is a technical legal issue that would not arise in Canada, but it is where a lot of U.S. cases have stalled). To explain, oil and gas companies believe that if they can get these issues heard in federal court, rather than in state courts, they can get the cases thrown out (this has happened in earlier cases).
The U.S. Court of Appeals for the Ninth Circuit (a federal court) is still considering which court should hear the lawsuit brought by San Francisco and Oakland, and that’s the context in which the 16 Attorneys General have weighed in. They argue that the case should stay in state court, and although their submission is focused on a narrow technical question, the press release accompanying it makes clear that California’s Attorney General is fully supportive of efforts to hold the fossil fuel industry accountable for its role in delaying climate action:
Our state and local governments have a duty to protect the welfare of our residents, and for decades, Big Oil has relied on deceptive tactics to mislead consumers about the harms of fossil fuel use. In today’s amicus brief [submission] we’re supporting Oakland and San Francisco’s efforts to hold accountable corporations looking to fill their pockets at the expense of the health and wellbeing of the American people. … At the California Department of Justice, we will use every tool at our disposal to ensure Big Oil is held responsible for deceiving the public and exacerbating our climate crisis.
Although the issue is still being argued in the San Francisco/Oakland case, many courts so far have ruled that litigation against fossil fuel companies can stay in state court. In such cases, the fossil fuel industry’s last-ditch effort was to ask the U.S. Supreme Court to step in.
And that’s what the U.S. Supreme Court refused to do twice, in two different sets of cases, on May 15th and April 24th. This does not necessarily mean that these cases will not end up back in the Supreme Court regarding future legal issues that arise, but it does mean that the cases that have been filed – and perhaps new ones – can go ahead in state court.
Why does this matter in Canada?
The decision on these technical issues regarding level of court does not have a direct legal impact on cases in Canada. There is no question as to where a similar case would be filed (if a case is filed in BC, it will be filed in the BC Supreme Court).
However, the U.S. Supreme Court’s refusal to put a roadblock in the way of state lawsuits is very significant – it means that a number of court cases will be moving forward much more quickly, which is both legally and politically relevant here.
These court cases that will now be moving forward, will be considering legal issues that are important to Canadian law.
Cases in Hawaii and Massachusetts are already in the pre-trial discovery stage, meaning that the fossil fuel defendants are soon going to have to disclose documents and evidence about what they knew about climate change and how they acted (among other things).
Even without the formal process of discovery, documents are coming to light showing that in 1989, Shell staff literally warned the company executives that business-as-usual climate projections could result in a collapse of civilization. Many other damning documents have been dug up by journalists and academics. What other documents are waiting to be revealed?
And with multiple cases moving forward under different legal theories, in different states and before different judges, it seems likely that at least some will result in court rulings on companies’ liability for their role in causing climate change. These rulings may provide a useful precedent for Canadian courts.
The significance of the Supreme Court’s approach isn’t just limited to cases that have already been filed. The Center for Climate Integrity argues that the U.S. Supreme Court’s decision has bolstered calls for new lawsuits, now that “the growing momentum of these cases is undeniable.”
U.S. political discourse has a way of spilling over into Canada. Lawsuits against tobacco companies arose in Canada only after successes by state governments in the U.S. normalized the concept here in Canada.
The fact that political leaders with 40+ governments, as well as 16 State Attorneys General, are actively talking about the importance of holding fossil fuel companies accountable for their role in causing climate change could well have an impact on Canadians and our sense of what is possible.
Indeed, one might ask why we’ve heard so little about climate accountability from our politicians, even as flooding, wildfires and heat waves impact British Columbia.
At the end of the day, a BC class action lawsuit against fossil fuel companies that the Sue Big Oil campaign calls for will be based on Canadian law, not what is going on in the United States. Legal experts, including West Coast Environmental Law, are clear that such a case has a strong basis in existing legal principles.
But at the same time, dozens of lawsuits unfolding in the U.S. against these same companies will have a legal and political impact. The U.S. Supreme Court’s recent decisions not to rescue fossil fuel companies from these legal fights will almost certainly have a positive impact on our own efforts to hold fossil fuel companies accountable in this country.
Top photo: U.S. Supreme Court building (Mark Thomas via Pixabay).