‘Watershed moment’: California enters climate litigation fray

By Lesley Clark | 09/18/2023 07:01 AM EDT

The state becomes the world’s largest economy to take oil majors to court for allegedly deceiving consumers about the dangers of burning fossil fuels.

California Attorney General Rob Bonta.

California Attorney General Rob Bonta (D) fields questions during an Aug. 28 news conference in Los Angeles. Marcio Jose Sanchez/AP Photo

California, a top oil-producing state, is suing the oil majors and an influential ally — making it the latest and largest player among a growing number of local governments looking to hold fossil fuel companies financially accountable for the effects of climate change.

The lawsuit, filed Friday in the Superior Court of California in San Francisco, accuses five of the world’s largest oil companies and their subsidiaries, along with the industry trade association the American Petroleum Institute, of waging a campaign to mislead the public about the dangers of burning fossil fuels.

“Oil and gas companies have privately known the truth for decades — that the burning of fossil fuels leads to climate change — but have fed us lies and mistruths to further their record-breaking profits at the expense of our environment,” said California Attorney General Rob Bonta (D). “Enough is enough.”


The move immediately vaults California to the top of a group of mostly Democratic-led states, including New Jersey, Massachusetts and Minnesota, that have filed lawsuits against the oil giants, as have two dozen local counties and cities.

Gov. Gavin Newsom (D), who was to use a press conference Sunday kicking off the United Nations climate summit and New York City’s Climate Week to tout the state’s involvement, argued the industry has lied about its contribution to global climate change for more than 50 years.

“It has been decades of damage and deception,” Newsom said. “Wildfires wiping out entire communities, toxic smoke clogging our air, deadly heat waves, record-breaking droughts parching our wells. California taxpayers shouldn’t have to foot the bill.”

The industry argued the lawsuit will do “nothing to advance meaningful solutions to climate change.”

“The challenge of our time is developing technologies and public policies so that the world can produce and use energy in ways that are affordable for people and sustainable for the planet,” said Phil Goldberg, special counsel to the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers. “It should not be figuring out how to creatively plead lawsuits that seek to monetize climate change and provide no solutions.”

A spokesperson for San Ramon, Calif.-based Chevron Corp., which is one of the five companies being sued, noted the Golden State long has promoted oil and gas development and said its courts “have no constructive or constitutionally permissible role in crafting global energy policy.”

Ryan Meyers, general counsel at API, said the industry has shown over the past two decades that it can deliver reliable energy while “substantially reducing emissions” and its environmental footprint.

“This ongoing, coordinated campaign to wage meritless, politicized lawsuits against a foundational American industry and its workers is nothing more than a distraction from important national conversations and an enormous waste of California taxpayer resources,” Meyers said, calling climate policy something for Congress “to debate and decide, not the court system.”

The suit comes as the Supreme Court earlier this year boosted a raft of similar cases by rejecting the oil industry’s latest efforts to derail them. Those rulings could pave the way for a flood of lawsuits against the industry to be heard in state courts from Maryland to Hawaii.

The lawsuits still have a long way to go, but if they are successful, the challenges could force the oil industry — like tobacco and opioid manufacturers before it — to pay hundreds of billions of dollars for harming the public.

The Center for Climate Integrity, which has supported local governments suing the companies, hailed the lawsuit as a “watershed moment” in the movement to take on the industry.

“California’s move is an unmistakable sign that the wave of climate lawsuits against Big Oil will keep growing and that these polluters’ days of escaping accountability for their lies are numbered,” said the center’s president, Richard Wiles. “Just like tobacco and opioid companies, the oil and gas industry will have to face the evidence of its deception in court.”

The environmental group Fossil Free Media, which has been involved in several anti-fossil-fuel campaigns, said it would launch a new effort to build support for the climate lawsuits — hailing the Golden State’s entry as a game changer.

“California just kicked open the door for every city and state to sue the fossil fuel industry for climate damages,” said the group’s director, Jamie Henn. “After this summer of brutal heat waves and climate disasters, I think the public is hungry for a way to hold the fossil fuel industry accountable for the damage they’ve done.”

New revelations

California’s lawsuit notes the state in 2023 alone has experienced both extreme drought and widespread flooding, along with wildfires, historic storms, and an unusually cold spring and record-hot summer.

The 135-page lawsuit, complete with graphics pointing to fossil fuel emissions as the dominant source of increases in atmospheric carbon dioxide, largely mirrors the other lawsuits that have been filed from Hoboken, N.J., to Hawaii.

It claims that oil giants knew for years that their products were contributing to global warming, but violated state nuisance and consumer protection laws by running a disinformation campaign to hide those facts from the public.

Some legal analysts have questioned whether the cases can show that the companies are still engaged in deceptive action. But new revelations have continued to emerge.

The Wall Street Journal last week published new internal documents from Exxon Mobil Corp. that showed the company sought to allay concerns about global warming in 2006 even as it argued publicly that the risks justified global action. The documents were part of an investigation by New York’s attorney general.

The industry has waged a yearslong, hypertechnical jurisdictional battle to move the cases from the state courts where they were filed to federal court, where the challenges are believed more likely to falter under the Clean Air Act.

The Supreme Court in 2021 ruled in a climate liability case led by Baltimore that federal judges must consider the industry’s full range of arguments in favor of moving the lawsuits. Though the ruling came after former President Donald Trump had left office, his Department of Justice filed a half-dozen friend of the court briefs in support of the companies’ position.

Multiple federal courts, however, were unimpressed with the arguments, and the industry turned once again to the Supreme Court for relief. President Joe Biden, who on the 2020 campaign trail had pledged to support the litigation, reversed the Trump administration’s position, telling the justices they should decline the companies’ plea.

The court, which only takes a fraction of the cases it is asked to hear, agreed, and in April and May turned down seven industry requests to intervene in the lawsuits.

One case is still pending before the high court: API, Exxon and others in August urged the court to intervene in Minnesota’s case against the industry, warning then that without Supreme Court review, such cases “will continue to proliferate.”

Trump has vowed to block the lawsuits if reelected, pledging in an energy plan he released earlier this month to “stop the wave of frivolous litigation from environmental extremists.”

The former president’s plan did not identify which climate lawsuits he would seek to target, but cited a blog post from an advocacy campaign run by the Independent Petroleum Association of America that accuses the Rockefeller Foundation of encouraging municipalities to take oil companies to court.

Since the end of the Trump presidency in January 2021, four more governments — including California — have filed lawsuits against the industry.

The most recent lawsuit was filed in June by Multnomah County, Ore., where 69 people died in a 2021 heat wave. New Jersey and Puerto Rico filed suits in 2022.

Puerto Rico’s lawsuit added a new claim against the industry, accusing it of violating the Racketeer Influenced and Corrupt Organizations Act, which is designed to take down organized crime.

West Coast states until now had been an outlier in the climate litigation.

Long anticipated legal bid

California had been expected to be among the first to file a lawsuit when the Los Angeles Times reported in 2016 that Vice President Kamala Harris, then California’s attorney general, had opened an investigation into Exxon for potentially misleading investors about climate change risks.

No lawsuit resulted under Harris or her previous successor, Xavier Becerra, though Harris claimed on the campaign trail in 2019 that she had taken the company to court.

“They have to be held accountable,” Harris, who was seeking the Democratic nomination for president at the time, said at a CNN town hall. “These are bad behaviors; they are causing harm and death in communities.”

Oregon and Washington, two other left-leaning West Coast states, have not pursued litigation, despite gentle nudging by allies who say the liability lawsuits are an important tool to hold companies accountable for greenhouse gas emissions.

Municipalities in California, however, have been active in the litigation with five California cities, including San Francisco and Oakland, and three counties, including San Mateo, filing some of the first climate lawsuits against fossil fuel companies in 2017 and 2018.

The lawsuit represents the latest climate move for Newsom, who has sought to create a role for the Golden State as a climate policy power broker.

The state last month signed an agreement with the Chinese province of Hainan to work together on phasing out fossil fuel vehicles, improving energy efficiency in buildings, and enforcing air pollution and greenhouse gas rules.

That memo came on the heels of another agreement Newsom signed in April renewing a Jerry Brown-era partnership with China’s Ministry of Ecology and Environment to encourage policy and academic exchanges.

In addition to Chevron and API, the California lawsuit names Exxon, Shell USA Inc., ConocoPhillips Co. and BP America Inc.

The suit asks the court to order the companies to pay for climate change costs and to establish a fund to help pay for future climate disasters.

It also calls for financial penalties for lying and punitive damages.

It brings seven causes of action, accusing the companies of violating state nuisance and product liability laws, as well as destroying natural resources, producing untrue or misleading advertising, and engaging in unlawful business practices.

This story also appears in Energywire.