Climate wreckage along Chesapeake fuels courtroom reckoning

By Maxine Joselow | 07/16/2021 06:02 AM EST

Jim Foster's home flooded during Hurricane Isabel in 2003 (left). Foster at the same Shady Side, Md., property last month (right). Jim Foster (left). Maxine Joselow/E&E News (right)

SHADY SIDE, MD. — Jim Foster wonders if he should move away from this idyllic coastal community before the next storm.

Foster, 63, has lived here on the shore of the Chesapeake Bay for nearly four decades. But he hasn’t shaken a sense of foreboding since 2003, when Hurricane Isabel slammed into the East Coast as a tropical storm, flooding his entire neighborhood.

The storm surge destroyed about 30 homes in Shady Side. Foster’s next door neighbor had her house excavated with a bulldozer after water caused the floor to collapse. Foster and his family went without power for a week and without running water for months because of damage to public wells.

“I certainly worry about the next hurricane. It’s not if, but when,” Foster said in a recent interview with E&E News in his front yard, which overlooks the bay. “Certainly the right trajectory would cause us some grief.”

Like Foster, state and local officials in Maryland are worried about the cost of protecting their communities against more severe storms and other natural disasters fueled by climate change. And they’re launching courtroom battles to force fossil fuel companies to foot the bill.

A growing body of research shows that climate change is making hurricanes stronger and more destructive. As humans continue to release more planet-warming greenhouse gases, the ocean is heating up. Warmer oceans hold more moisture, providing more energy for tropical storms as they move over land.

Hurricanes are just the most dramatic sign of human-caused global warming here on the Chesapeake Bay. Sea levels are also creeping upward by approximately 1 inch every five years — nearly twice the global average rate.

For state and local governments in Maryland, addressing these climate impacts will cost millions of dollars. Anne Arundel County, which includes Shady Side and the state capital of Annapolis, expects to spend at least $237 million to elevate public roads and replace drainage pipes threatened by sea-level rise, flooding and storm surge.

To help fund these efforts, local officials are pursuing legal action against a major source of planet-warming emissions: Big Oil.

Anne Arundel County Executive Steuart Pittman, a Democrat, sued more than two dozen oil and gas companies earlier this year over their contribution to — and alleged deception about — the dangers of rising global temperatures (Greenwire, April 27).

The lawsuit asserts that Exxon Mobil Corp., Royal Dutch Shell PLC and other oil supermajors misled the public for decades about the environmental risks of burning fossil fuels. It asks the companies to help fund climate adaptation projects to shield the county’s 530 miles of shoreline from rising seas and stronger storms.

Annapolis Mayor Gavin Buckley, another Democrat, launched a similar legal challenge in February. His complaint notes that the city expects to spend at least $56 million on protecting the historic downtown area from flooding, as well as at least $45 million on constructing 4 miles of sea wall by 2040.

Foster, the former president of the Anacostia Watershed Society, a nonprofit dedicated to cleaning up the Anacostia River, believes both lawsuits could bring much-needed awareness to the local impacts of a warming world.

“I think that reasonable people will struggle to assign 100% guilt to Exxon or Shell or something. But I’m supportive of it because it helps the discussion,” Foster said.

“I think that people will respond to facts that are presented in court better than they do to just facts on the internet,” he added. “And at the end of the day, I don’t think it’s about ruining the oil companies. It’s about understanding that this is an issue that’s impacting all of us.”

Phil Goldberg, special counsel at the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the climate liability litigation, said the lawsuits unfairly target the fossil fuel industry for providing a valuable service to society.

“Certainly, it is understandable that communities are looking to figure out how to deal with climate change. But suing the energy companies is not the right answer,” Goldberg said. “These are the companies that are providing the energy we’re all using every day, including people in Anne Arundel County.”

A spokesperson for Shell agreed, saying in an email to E&E News: “Addressing a challenge as big as climate change requires a truly collaborative, society-wide approach. We do not believe the courtroom is the right venue to address climate change, but that smart policy from government, supported by inclusive action from all business sectors, including ours, and from civil society, is the appropriate way to reach solutions and drive progress.”

 

Annapolis underwater

 

Since 2017, five states and more than a dozen municipalities have filed climate liability lawsuits — like the challenges from Annapolis and Anne Arundel County — seeking energy industry compensation for the local impacts of global warming.

So far, the suits have been tied up by procedural wrangling over whether they belong in state or federal court. Lawyers for the oil and gas companies have repeatedly bumped the cases to federal court, which is seen as a more favorable venue for the fossil fuel industry.

In its 171-page complaint, Annapolis highlighted that residents are experiencing more frequent “sunny-day” flooding or “nuisance” flooding, which occurs when exceptionally high tides spill onto the streets and bubble up from storm drains.

Annapolis last year approved a $40 million plan to renovate the historic City Dock and fully demolish and rebuild the Noah Hillman Garage, the only parking garage in the downtown area. Both structures are threatened by sunny-day flooding and are located less than 500 feet from the Maryland State House.

“We have come up with a short-term solution of a minipump system that we put in, and that’s been effective to reduce the nuisance flooding. But it’s just holding it back for a certain amount of time, and it’s only going to last for so long,” Buckley, the Annapolis mayor, said in a recent interview with E&E News at Annapolis City Hall.

The City Dock Flood Mitigation Project is “not just about flooding and sea-level rise. It’s about the next Isabel, the next freak storm,” Buckley added.

Annapolis has seen a 925% increase in the frequency of sunny-day flooding since the 1960s — the most of any U.S. city, a recent NOAA report found.

William Sweet, an oceanographer at NOAA’s National Ocean Service and a co-author of the report, said the surge in sunny-day flooding was caused by both sea-level rise and subsidence, or the sinking of the land due to the extensive pumping of groundwater and natural factors.

“Next year, we’re expecting between seven and 11 of these days of flooding,” said Sweet, who lives in Annapolis. “So you can get a sense that it’s been growing rather rapidly.”

On a sweltering summer afternoon near City Dock last month, customers flocked to a souvenir shop to buy sunglasses and hats — and to escape the 94-degree heat for a cool blast of air conditioning.

Young Chong, who has owned the souvenir shop for nearly 14 years, told E&E News she often throws away T-shirts that get soaked by sunny-day flooding, chipping away at her annual profits.

“I throw them away several times a year because I cannot sell them,” she said, shaking her head. “Nobody will buy them like that.”

 

Conservative criticism

Not everyone believes the fossil fuel industry should be on the hook for climate adaptation costs.

Anne Arundel County Councilman Nathan Volke, a Republican, said he opposes the climate liability litigation because it seems designed to score political points for Pittman, the county executive.

“Is this lawsuit really intended to get money back for the citizens of the county?” Volke asked. “Or is the purpose a nice PR victory for the county executive to try to align him more with the environmental base that he has been basically playing to for the past 2 ½ years?”

Pittman strongly rejected these allegations in an interview with E&E News, saying the lawsuit is not a “political stunt.”

“I think that may be coming from a place of not acknowledging the threat of climate change,” Pittman said. “And for anybody who takes that position, I think they might want to get their head out of the sand before the sand’s underwater because they’re going to drown.”

Jessica Haire, the only other Republican on the seven-member Anne Arundel County Council, aired similar concerns about the litigation.

“I would rather see our county executive’s office focused on solutions to problems our residents are facing, rather than finger-pointing,” she said.

Still, Haire, whose district includes Foster’s home in Shady Side, said her constituents frequently complain to her about flooding.

“I’m not a scientist,” she said, repeating a common conservative refrain. “But you can’t dispute that there’s been an increased frequency and severity of flooding and climate events. In my district, you now see flooding from rain events in people’s backyards where you would not have seen it before. So I do think we should be looking at other ways to try to figure this out.”

 

‘Left behind’

Anne Arundel County is one of the wealthiest counties in Maryland and in the nation.

The median annual household income in the county in 2019 was $100,798, compared with $84,805 in Maryland and $68,703 in the United States, according to U.S. Census Bureau data.

But Pittman said even Anne Arundel will need the fossil fuel industry — rather than taxpayers — to pay up for climate adaptation projects.

“The median income in the county is relatively high, but we have plenty of poverty,” he said. “We have plenty of communities that can’t afford this kind of damage, and plenty of homeowners that can’t pay for it themselves.”

Pittman proposed a $1.87 billion annual budget for the county in April. The budget would allocate $784 million to the county Board of Education and $379 million to public safety initiatives, among other things.

In addition, Pittman last month signed legislation creating a new Resilience Authority to help finance projects that fortify infrastructure against climate impacts, including the $237 million effort to raise public roads and replace drainage pipes vulnerable to sea-level rise and storm surge.

Richard Wiles, executive director of the Center for Climate Integrity, a nonprofit group that supports the climate liability litigation, said climate change has forced many cities and counties to make difficult funding decisions.

“If municipal governments have to make choices between funding schools and providing health services to the community versus building sea walls, who is going to suffer? It’s always going to be the poor and the vulnerable,” Wiles said.

“The fact is even in a wealthy county like Anne Arundel, the wealth is not evenly distributed,” he added. “There will be parts of the county that will really get hit hard. And if history is any guide, they’ll be left behind.”

Foster, the resident of Shady Side, said some of his neighbors couldn’t afford to rebuild their homes after Isabel. He said the benefits of climate adaptation efforts “have to accrue to the whole county, not just the wealthy people who have moved to the waterfront and are now crying.”

 

Climate in the courts

 

Maryland has emerged as a key player in the climate liability movement.

In addition to Annapolis and Anne Arundel County, Baltimore — Maryland’s most populous city — brought a climate liability lawsuit against 26 fossil fuel firms in 2018.

In May, the Supreme Court issued a 7-1 opinion in BP PLC v. Mayor and City Council of Baltimore, a narrow technical case related to whether the Charm City’s suit belongs in state or federal court.

In the majority opinion, Justice Neil Gorsuch agreed with BP and other oil companies that federal appeals courts can review the entire scope of remand orders that send cases like Baltimore’s back to the state courts where they were originally filed.

The 4th U.S. Circuit Court of Appeals must now weigh the fossil fuel industry’s eight arguments for why Baltimore’s suit belongs in federal court. Previously, the 4th Circuit found it only had the authority to consider one argument.

In the meantime, lawyers for the oil and gas industry have filed motions to remove the Annapolis and Anne Arundel suits to federal court. But proceedings in both cases have been paused until the 4th Circuit rules in Baltimore’s case.

“We think that at the end of the [4th Circuit’s] decision, we will be back in state court, where these cases should be,” Annapolis City Attorney D. Michael Lyles told E&E News.

“We’re not trying to solve climate change with this case,” Lyles added. “We are trying to recover the money, the damages, the harm that we face every day from the deceptive practices of these fossil fuel companies … that hid information from the American public and the citizens here.”

The procedural wrangling in the climate liability cases is expected to continue for at least another year or two. Baltimore’s suit could eventually make it back to the Supreme Court on the merits, meaning the justices could dig into the weighty allegations of oil industry deception at the heart of the case.

But Foster, the resident of Shady Side, might sell his house before the legal battles are over. He recently broached the subject of moving with his wife for the first time in nearly 40 years.

“At first, my wife was like, ‘No way in hell. Over my dead body,'” Foster recalled. “But I don’t know if I can go through another Isabel with all the damage that was here. I’m just not ready to go through that again. So that’s certainly part of the calculus.”