Lawyers suing some of the world’s largest oil and natural gas companies over climate change are closely following a seemingly unrelated ruling out of Oklahoma — one holding a drugmaker culpable for fueling the state’s opioid epidemic.
The reason is this: Both the cases against pharmaceutical makers and those against the fossil-fuel firms are founded on the same legal theory — that the companies’ sale of allegedly harmful products is creating a crisis for which they are financially responsible.
An Oklahoma state judge’s landmark decision last week against Johnson & Johnson was the first to hold a drugmaker responsible for the nationwide flood of addictive opioids. Using state common law normally invoked in neighborly disputes, Oklahoma’s attorney general argued the drug company had created a “public nuisance” by pumping the market with painkillers.
Similarly, a number of state, county and city governments from Rhode Island to California are bringing lawsuits against firms like ExxonMobil, Chevron, Dutch Royal Shell and BP under the theory that the carbon dioxide their products put into the atmosphere has also created a public nuisance by contributing to climate change.
If successful, the lawsuits could put oil companies on the hook to pay billions of dollars to local governments contending with the cost of higher seas, hotter summers and other effects of elevated greenhouse gases.
But it remains unclear if the wave of litigation — which has faced stiff headwinds in the past but is now propelled by stronger science and reports about what oil companies previously understood about climate change — will succeed or fail.
The definition of public nuisance varies from jurisdiction to jurisdiction, but typical examples include the stuff of obnoxious neighbors: blaring loud music, shooting off fireworks or failing to keep a dangerous dog on a leash.
The fact that Cleveland County District Judge Thad Balkman accepted the more expansive view of public nuisance put forward by the state of Oklahoma in the opioid case is good news to those making similar arguments against oil companies.
“This will be a useful precedent to point to,” said David Bookbinder, chief counsel of the Niskanen Center who is representing two counties and a city in Colorado, said of the Oklahoma case.
But linking a worldwide problem like global warming back to specific oil companies remains a challenge. The burning of any individual corporation’s product can only be partially responsible for global climate change and the companies are not using the fuel themselves — motorists, airliners and power plant operators are.
“A molecule of carbon dioxide is literally around the world in seven days after its produced and is effectively severed from its source,” said Scott Segal, an attorney with Bracewell LLP who represents energy companies. “Using the courts to address climate change stretches the application of nuisance law beyond its snapping point. Instead, issues like carbon emissions are more appropriately left to the legislative and regulatory process.”
But Bookbinder points out that Johnson & Johnson’s share of opioid sales in Oklahoma was less than 1 percent of the market, according to the company itself, yet it still lost in state court. Johnson & Johnson denies any wrongdoing and said it would appeal.
“The oil industry is saying, ‘Why are you suing us? We’re just a part of it,’ ” Bookbinder said.
Efforts to hold oil and gas companies accountable with similar legal arguments have previously failed in federal courts. In 2009, an appellate court ruled against the vulnerable Alaskan coastal village of Kivalina. And in 2011, the Supreme Court unanimously decided against a public nuisance suit brought against a group of electric utilities from eight states and New York City.
In both cases, the courts reasoned the Environmental Protection Agency was already addressing climate change with federal pollution rules. So the new bevy of public nuisance lawsuits against the oil industry — coming from the cities of New York, Baltimore, San Francisco and Oakland, among others — have been filed under state, rather than federal, common law, which the plaintiffs think gives them a better shot at winning.
So far, the legal fight between the municipalities and oil firms has been focused on whether the claims should be heard at the federal or state level. Several federal district courts have already weighed in, but have ruled in different ways — keeping the case from Baltimore and the state of Rhode Island in state court while throwing out the cases brought by New York and San Francisco.
The appellate courts and, perhaps eventually, the Supreme Court will have to determine the best venue for the cases. But even if they remain in state court, as the left-leaning local governments hope, the suits still face legal hurdles even with the favorable precedent set in Oklahoma.
“A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,” said Richard Lazarus, a professor of environmental law at Harvard.
“But the converse is not true,” Lazarus added. “A favorable ruling is certainly good news for the climate public nuisance plaintiffs but the remaining lift necessary for the climate plaintiffs to prevail remains considerable.”
The latest: The now-Category 3 hurricane is stalled over the northwestern Bahamas. “In its 2 a.m. bulletin Tuesday, the National Hurricane Center wrote that Dorian will ‘move dangerously close to the Florida east coast’ late Tuesday through Wednesday evening, then up the coast to North Carolina by late Thursday,” The Post’s Jason Samenow and Andrew Freedman report. Meanwhile, Florida residents and others across the eastern United States braced for the storm’s impact, with millions on the East Coast under mandatory evacuation orders. “The National Hurricane Center has repeatedly urged people not to focus too much on the exact track predicted for Dorian. Hurricanes are fickle, and this one could ignore the computer models and roll right onto Florida’s crowded, condominium-lined coast,” write The Post’s Lori Rozsa, Patricia Sullivan, Fenit Nirappil and Joel Achenbach.
The city-by-city forecast: If you live in Florida, Georgia, South Carolina, or North Carolina, The Post’s Matthew Cappucci has the forecast for several cities in the region as Dorian threatens a number of U.S. cities. There's no paywall on Post reporting for Dorian-related stories.
“Bahamas is presently at war”: From Sunday and into much of Monday, Dorian blasted the Bahamas first as a Category 5 hurricane, eventually weakening slightly to a Category 4. Prime Minister Hubert Minnis confirmed late Monday at least five people had been killed in the storm and at least 21 injured, though the totals are likely to increase, Jasper Ward and Anthony Faiola report for The Post. The slow-moving storm meant some parts of the Bahamas saw nearly 24 hours of devastating conditions. “Severe flooding and power and phone outages extended beyond the worst of the strike zone, as far south as the capital, Nassau. Unconfirmed reports of deaths emerged on the hard-hit Abaco Islands — reports that authorities said they were still struggling to confirm,” they write. “…Aid organizations and emergency responders from Miami-Dade County and elsewhere in the United States were making preparations to set up relief operations on the hardest-hit Bahamian islands as soon as conditions allowed.”
How FEMA is responding: The acting director of the Federal Emergency Management Agency — which has been without a permanent leader since Brock Long announced his resignation in February — stressed the “uncertainty” of the storm will pose a challenge for the agency. “We’ve been dealing with uncertainty pretty much the entire time with Dorian,” acting FEMA director Pete Gaynor said in an interview on “Fox News Sunday.” “It’s going to stall out tomorrow and into Tuesday. Cat. 5, 160 mile an hour winds, surge. And I know people are getting tired because this has been a long-duration storm and it hasn’t even touched Florida or the East Coast.” He added FEMA “activated in the national response coordination center… We have food, water, generators, staff, helicopters, ambulances — from Florida all the way to North Carolina.”
Trump said he’s OK without a permanent leader: “Acting gives you great flexibility that you don't have with permanent,” the president told reporters on Friday. “When I like people, I make them permanent, but I can leave acting for a long period of time.” Gaynor, the deputy FEMA administrator, has been serving as acting administrator of the agency since Long’s exit. Meanwhile, the confirmation of Trump’s nominee to fill the post, Jeffrey Byard, has stalled in the Senate.
Trump said he's never heard of Category 5 storms: The president expressed shock the latest storm reached the highest level on the Saffir-Simpson Hurricane Wind Scale. “I’m not sure I’ve ever even heard of a Category 5. I knew it existed. And I’ve seen some Category 4s,” Trump said Sunday, per The Post's Andrew Freedman. “You don’t even see them that much. But a Category 5 is something that, uh, I don’t know that I’ve never even heard the term, other than I know it’s there. That’s the ultimate. And that’s what we have, unfortunately.”
He has said this before. Here are few different times the president has questioned the category since 2017, via CNN’s Daniel Dale:
President Donald Trump on the existence of Category 5 hurricanes, 2017-2019. pic.twitter.com/IRRny20hfp— Daniel Dale (@ddale8) September 1, 2019
Why it’s important: “Although it might seem like a harmless curiosity or blind spot, Trump’s self-professed ignorance of Category 5 monsters could slow the government’s response to such disasters or contribute to confusion at the highest levels of government as well as among people in harm’s way,” Freedman writes, noting it’s the fourth straight year with a Category 5 hurricane in the Atlantic.
Trump’s Twitter storm by the numbers: By Monday night, the president had posted at least 122 weekend tweets with Dorian updates, the New York Times reports. “As Dorian approached, Mr. Trump switched into town-crier mode, updating the public on what he had learned — or, what he thought he’d learned — from government officials as Dorian threatened the coast of the state of Florida, where he has owned property for decades,” per the report.
— The latest corporate push against Trump’s auto mileage rules: The U.S. Chamber of Commerce called in a letter last week for the Trump administration and officials in California to work out a compromise amid the ongoing feud over vehicle fuel efficiency standards. “Continued progress on fuel economy and emissions reductions can be achieved without undue harm to the economy, and predictable year-over-year efficiency improvements are key to enabling the U.S. to maintain environmental and manufacturing leadership,” wrote Neil Bradley, the Chamber’s chief policy officer in a letter to Environmental Protection Agency administrator Andrew Wheeler, Transportation Secretary Elaine Chao and California Air Resources Board Chairman Mary Nichols, according to Bloomberg News.
— A water crisis in Newark: A federal judge turned down a request for an order to distribute more bottled water in Newark in response to concerns about lead in the city’s drinking water. A community group and an environmental organization called on Judge Esther Salas of the U.S. District Court for the District of New Jersey to expand the bottled water distribution to another area, arguing that the "blending of water between the two systems and other factors raise questions about the safety of the Wanaque water,” Bloomberg News reports. “But Salas… found that the evidence presented had shown no systemic failure in the Wanaque area and that corrosion control in the Wanaque pipes ‘is in fact functioning and effective.’” In early August, the EPA had called on the city to provide bottled water to the “Pequannock service area, which serves roughly half of the city’s 270,000 residents, after signs that unacceptably high levels of lead were present from aging pipes.”
— Greta in New York: Teenage environmental activist Greta Thunberg, who arrived in the city last week after a two-week sail from the United Kingdom, joined a crowd of youth demonstrators outside of the United Nations headquarters on Friday. Another teen activist Alexandria Villaseñor, 14, who has been protesting outside of the UN every Friday since December, said Thunberg’s presence is critical ahead of the U.N. summit later this month, the Guardian reports. “What’s really important about Greta being here today is it’s the start of something new. Because with the climate summit coming up it’s the way for all the youth to unite here and send a message to world leaders at that climate summit,” Villaseñor said.
— In Trump country, a group of coal miners rebel over lost jobs and missed paychecks: A group of coal miners who were laid off from their jobs this summer have been lodging a protest by camping out in the middle of train tracks, working in shifts to block tracks leading to a mine owned by coal company Blackjewel, The Post’s Tim Craig reports. They were laid off by the company that shut down operation in July — the latest coal producer to file for bankruptcy as the industry continues to retreat under President Trump – which resulted in bounced paychecks or paychecks that weren’t issued at all for about 1,800 workers. “The same situation may have happened to others, but we are the ones making a stand,” said 35-year-old Chris Rowe, who was let go days after buying his first home.
The backdrop: “Cumberland is located in Harlan County, where Trump won 85 percent of the vote,” Craig writes. “But these miners say their fight isn’t a political one. At the camp, there is an informal policy against speaking about Trump or partisan issues, underscoring the president’s continued popularity in areas where the local economy has continued to suffer.”
- FERC Chairman Neil Chatterjee speaks at a Resources for the Future event on Wednesday.
- Sen. Ted Cruz (R-Tex.) gives a keynote address at the Houston Oil Forum, which will run from Wednesday and Thursday.
- The House Transportation and Infrastructure Subcommittee on Water Resources and Environment holds a hearing on the Administration’s Priorities and Policy Initiatives Under the Clean Water Act on September 18.
— The eye of the storm: Here is an eye-popping view of Dorian shared by NASA astronaut Nick Hague.