5 legal fights on climate for 2019

Source: Benjamin Hulac, E&E News reporter • Posted: Friday, January 4, 2019

The field of lawsuits related to climate change is set to expand in 2019 following a year of setbacks and delays.

President Trump elevated climate change last year by denying the science around it. That collided with a string of court cases alleging that oil companies are making the oceans rise and with investigations by state attorneys general over potential fraud by Exxon Mobil Corp. A group of fishermen entered the fray by claiming that emissions from Big Oil are affecting their livelihood.

There were also stumbles.

Youth plaintiffs in Juliana v. United States, a landmark challenge against the government over its role in heating the planet, face indefinite delays in going to trial. Federal judges dismissed cases in New York and California about the costs of adapting to climate change. And a Swiss court rejected an argument from a group of older women — the “Swiss grannies” — who claimed that they were particularly vulnerable to heat waves.

Here are five themes on climate law to follow in 2019:

Going global

Vanuatu, the low-lying Pacific island nation, may file a lawsuit against major fossil fuel companies and wealthy countries that consume their products.

Speaking in November in Wellington, New Zealand, Vanuatu Foreign Minister Ralph Regenvanu said the country was looking into “all avenues” in the court system to sue for climate damages. It comes as island nations face growing perils from sea-level rise.

“It’s just a constant state of emergency, basically,” Regenvanu said (Climatewire, Dec. 12, 2018).

Greenpeace, Oxfam and other advocacy groups sued the government of France last month for failing to adequately address climate change. And Catherine Gauthier, the head of an environmental group in Quebec, sued the Canadian government for “infringing on the rights of younger citizens.”

The outcome of those kinds of cases is checkered. Some are successful, others aren’t.

The Dutch government lost in an appeals court in October over a lower court ruling that it must sharply reduce its emissions.

But a Swiss court dismissed an argument from the “Swiss grannies,” a group of more than 450 older women who sued the national government for exposing people older than 75 to greater health risks related to warming.

Juliana v. United States: What’s next?

A trial in the landmark case was supposed to be well underway.

Had it begun as scheduled in October, the plaintiffs, a group of 21 American children and young adults, would have already delivered their testimony and government attorneys would be just about to begin the government’s defense.

Instead, the case has bounced from a federal court in Oregon to an appeals court in San Francisco and to the Supreme Court. Its future is unclear.

The delay is a temporary victory for the government, which wants to get the case tossed from court. For the plaintiffs, it’s an irritation — at a minimum. It has prevented them from presenting a cache of documents to a district court in Eugene, Ore., that show how the government knew about warming since the 1960s, at least.

“The government has used the power of their office and the depth of taxpayer coffers to waste precious time and resources to avoid trial in this case, and now the court has capitulated with little scrutiny,” Julia Olson, an attorney for the plaintiffs, said last week.

The 9th U.S. Circuit Court of Appeals approved the government’s request a week ago to appeal lower court rulings.

With President Trump as a foil, the case has catapulted to national attention. Still, if the case does land in the Supreme Court, the plaintiffs face an uphill climb.

The conservative-leaning court is unlikely to grant the relief they want: a science-based plan to phase out fossil fuels nationwide.

Reeling in a new advocate

The outcome of environmental fights often comes down to who’s doing the campaigning.

To many conservatives, former Vice President Al Gore is a partisan whose messages are easily dismissed.

But what about blue-collar workers?

Commercial fishermen in California and Oregon sued dozens of oil and gas companies in November, accusing them of overheating the water that sustains their catch (ClimatewireNov. 15, 2018).

Defendants include Exxon Mobil Corp., Chevron Corp., BP PLC, Royal Dutch Shell PLC and ConocoPhillips — whose researchers have known for decades that humans are warming the planet.

“It’s industry to industry, one harming another with the causal connection to prove it,” said Noah Oppenheim, executive director of the Pacific Coast Federation of Fishermen’s Associations. “If the fishermen were causing this much harm to the public, we should get shut down.”

Lawyers for the oil companies are trying to get the case moved from a state court in California to federal court, where they believe they have a stronger position.

Wherever the case lands, the fishing industry is a different type of environmental advocate, and it’s not easily dismissed as partisan.

Brussels and Washington gear up

Government officials in the European Union and the United States will take a hard look at the fossil fuel industry in 2019.

“How do you feel about the fact that your lies have put at risk both human civilization and the possibility for your grandchildren to live a normal life?”

That’s the question that Molly Scott Cato, a member of the European Parliament, said she plans to ask in March, when Exxon is scheduled to appear before E.U. officials in Brussels.

In 2016, Food & Water Watch pressed for a hearing to examine the role that it says Exxon played in deceiving the public about climate change.

Across the Atlantic, Democrats in Washington will take over the House. They plan to create a Select Committee on the Climate Crisis.

The panel will lack subpoena power, but it could still wield a broad mandate that includes calling witnesses from fossil fuel companies to appear in Congress.

The Sunrise Movement, an environmental advocacy group, would like to see plans for a so-called Green New Deal — a massive jobs and clean technology program — emerge from Congress.

Climate nuisance cases stay pesky

More nuisance lawsuits over climate change will almost certainly be filed in the United States this year, adding to a swath of active cases.

Federal judges in New York and San Francisco threw out three cases against fossil fuel companies last year, arguing that the benefits of fossil fuels must be weighed against their detrimental effects.

Climate nuisances cases are also pending in California, Washington state, Baltimore, Rhode Island and Colorado.

Lawyers in those cases argue that physical changes — rising sea levels, heat waves, drought and acidifying waters — would not have occurred if major energy companies had not released greenhouse gas emissions.

In court papers filed in September, Exxon and Suncor Energy Inc., defendants in the Colorado case, said they were not at fault because fossil fuels are ingrained in modern life.

They added that the plaintiffs — which include Boulder and San Miguel County — bear responsibility for climate change, too, because they “combust fossil fuels — the alleged root cause of their injuries.”

That case and at least eight others in the United States are still pending.

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