“In this litigation, the City seeks to shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat,” reads the lawsuit, brought by New York corporation counsel Zachary Carter and filed in U.S. District Court for the Southern District of New York.
The legal strategy has already been embraced by several California cities and counties, but prior lawsuits seeking to blame companies for their role in causing climate change have foundered.
It remains unclear whether a new wave of litigation — propelled by stronger climate science, reports about how much some companies knew about climate change decades ago, and somewhat divergent legal strategies — will succeed where those efforts failed.
In California last year, Marin County, San Mateo County and the city of Imperial Beach similarly sued a group of fossil fuel companies over damage related to climate change — citing a theory called “public nuisance,” which basically argues that companies are causing an injury to the localities under common law. The cities of San Francisco and Oakland and the city and county of Santa Cruz have also filed suit.
“I think the significant development here is that this is the first of these cases in this last year that’s filed outside of California,” said Michael Burger, who directs the Sabin Center for Climate Change Law at Columbia University. If more and more localities sue, “we might be able to see adequate pressure applied to these companies to inspire action on climate change,” he said.
So far, that has not been the response. ExxonMobil has instead reacted strongly to the claims, seeking in Texas court to depose California state officials and others involved in bringing the cases for “potential claims of abuse of process, civil conspiracy, and violation of ExxonMobil’s civil rights.”
Climate change “is a complex societal challenge that should be addressed through sound government policy and cultural change to drive low-carbon choices for businesses and consumers,” Curtis Smith, head of U.S. media relations for Shell, wrote by email, “not by the courts.”
BP and ConocoPhillips, two other defendants named in the lawsuit, declined to comment.
Exxon responded to New York’s lawsuit on its blog, where the firm has also challenged investigative reports from InsideClimate News and the Los Angeles Times that showed the company was an early pioneer in climate-change science in the 1980s, reports that were cited in the suit.
“ExxonMobil welcomes any well-meaning and good faith attempt to address the risks of climate change,” wrote Suzanne McCarron, Exxon’s vice president of public and government affairs. “Reducing greenhouse gas emissions is a global issue and requires global participation and actions. Lawsuits of this kind — filed by trial attorneys against an industry that provides products we all rely upon to power the economy and enable our domestic life — simply do not do that.”
Chevron spokesman Braden Reddall said in an email: “This lawsuit is factually and legally meritless, and will do nothing to address the serious issue of climate change. Reducing greenhouse gas emissions is a global issue that requires global engagement. Should this litigation proceed, it will only serve special interests at the expense of broader policy, regulatory and economic priorities.”
Several prior cases challenging individual companies based on a public-nuisance theory have failed — including at the Supreme Court, which ruled in 2011 that climate action by the Environmental Protection Agency in effect removed the ability to use the courts as a remedy.
But the difference now, Burger said, is that the claims are being brought under state, rather than federal, common law — and that strategy remains to be tested.
New York charges in the lawsuit that it is “spending billions of dollars” to protect its coastlines, its infrastructure and its citizens from climate warming.
“To deal with what the future will inevitably bring, the City must build sea walls, levees, dunes, and other coastal armament, and elevate and harden a vast array of City-owned structures, properties, and parks along its coastline,” the lawsuit says. “The costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.”
The suit does not specify precisely how much money it is asking for from the oil companies in what it calls “compensatory damages,” saying that should be established in the case.
At a news conference Wednesday afternoon, New York City Mayor Bill de Blasio focused on the devastation caused by Hurricane Sandy in 2012, calling it “a tragedy wrought by the actions of the fossil fuel companies.” He detailed the 44 people who died in New York as a result of Sandy, as well as the estimated $19 billion in damage it caused. “That is the face of climate change,” de Blasio said. “That is what it means in human and real terms.”
De Blasio claimed fossil fuel companies were complicit in worsening climate change, because they knew of the problem decades ago but continued to sell a product to Americans that contributed to only more greenhouse-gas emissions.
“The city of New York is taking on these five giants because they are the central actors, they are the first ones responsible for this crisis and they should not get away with it anymore,” he said, adding: “We’re going after those who have profited. And what a horrible, disgusting way to profit — the way it puts so many people’s lives in danger.”
“It’s time that they are held accountable,” de Blasio said. “It’s time that things change in the way we do business.”
In addition to the litigation, officials said they expect to divest up to $5 billion in investments from as many as 190 companies with fossil fuel ties, even as they promised to maintain their fiduciary duty to New York’s pensioners.
“We’re using this moment to send a message to the world,” said New York City Comptroller Scott Stringer. “We believe a green economy is a thriving economy.”
Bill McKibben, an author and co-founder of the climate advocacy group 350.org, praised the city’s actions Wednesday.
“I’ve been watching the climate fight for the last 30 years,” McKibben told reporters. “This is one of the handful of most important moments in that 30-year fight.”
But the oil and gas lobby said that by not investing in their industry, New York was doing city workers a disservice.
“Today Mayor de Blasio turned his back on millions of first responders, police officers and public employees who depend on their pensions to provide for themselves and their families in retirement,” said Karen Moreau, New York executive director for the American Petroleum Institute, the largest U.S. oil and gas lobbying group. “Government pension managers have a responsibility by law to seek the greatest return for their investors and pensions that invest in oil and natural gas companies have historically delivered a stronger return than other investments.”
Brady Dennis contributed to this report.