By Dennis Herrera
[Originally published in The Pacific Council Magazine, Nov. 18, 2020]
We’ve seen our country—at least at the federal level—dragged backward on climate change over the past four years.
As wildfires fueled by abnormally high temperatures tore through increasingly parched West Coast states, and stronger, more-destructive hurricanes fed by warmer seas pounded the Gulf Coast and Eastern Seaboard, we saw top federal officials parroting the fossil fuel industry by casting doubt on climate change.
U.S. Supreme Court Justice Amy Coney Barrett, the daughter of a Shell Oil executive, said in her Senate confirmation hearing in October that climate change was “politically controversial” and refused to say if she thought it was real.
President Trump has been all over the map. He has said climate change is “mythical”, “nonexistent,” or “an expensive hoax.” In 2018 he disputed his own government’s National Climate Assessment, which found that climate change would be devastating to the economy. Trump’s response was: “I don’t believe it.”
But he has also contradicted himself, saying in January 2020: “Nothing’s a hoax about (climate change). It’s a very serious subject… I want the cleanest air, I want the cleanest water.”
Actions, of course, speak louder than words. Six months after he was sworn into office, President Trump announced he would withdraw the United States from the Paris Climate Accord. The day after Election Day 2020, the U.S. formally withdrew from the Paris Climate Accord, capping four years of the Trump administration systematically torpedoing the Obama administration’s climate-change-mitigation policies, including limits on vehicle emissions and dirty power plants. The Trump administration even attacked California’s ability to adopt vehicle emission standards that are more ambitious than the federal government’s, something our state has been able to do since the Clean Air Act was passed in the 1960s.
With President-elect Joe Biden set to take office this January, the outgoing administration’s hatchet job on common-sense regulations will be reversed. That’s good news for our country and our planet. The substantial damage that was done these last four years will be harder to fix, but there was a silver lining. The leadership vacuum at the federal level has led local governments to create novel approaches to dealing with a global problem—approaches that are showing promise and being replicated by other cities and states.
Coastal cities like San Francisco, Oakland, and Imperial Beach were leaders when we sued major fossil fuel companies, including Exxon Mobil, Chevron, BP, ConocoPhillips, and Royal Dutch Shell, in 2017, alleging the companies knew for decades that their products were causing climate change but hid that information. Instead, these companies engaged in a multi-million-dollar disinformation campaign to sow doubt and create hostility toward climate science—all in an effort to protect their profits.
Our case and others like it demonstrate how local governments are using state law to address the fallout of a global problem.
Our lawsuit doesn’t seek to regulate emissions or propose a comprehensive approach to climate change. (To be clear, both of those things should be done, but they are beyond the scope of local governments.) Our lawsuit seeks to hold these companies accountable for their actions and to address the harm those actions have caused—and will continue at an accelerated pace to cause – to San Francisco. Think of climate change as a gun with reduced speed. The fossil fuel industry has pulled the trigger, and the bullet is heading toward us. We want the companies to provide a bullet-proof vest before the bullet reaches us.
This industry knew since at least the 1960s that its products would warm the planet and cause seas to rise. They knew they were threatening homes, businesses and whole cities. They lied to public about it for decades as they made enormous profits.
Now the bill has come due.
We want these companies to pay their fair share to build seawalls, reinforce wastewater treatment facilities and protect infrastructure threatened by rising seas because of their products and deception. These fixes will likely be in the billions of dollars. Our legal approach is about addressing the reality on the ground.
San Francisco is surrounded by water on three sides. Bayside sea level rise from global warming threatens at least $10 billion of public property and as much as $39 billion of private property in our city. Our renowned waterfront and downtown financial district are two of the areas most at risk.
San Francisco is not trying to take over the federal government’s regulatory role, and no federal regulations can now decrease the risk to us that these companies’ past actions have created. We’re seeking to make local taxpayers whole. These companies knowingly created a public nuisance. It’s time that they pay their fair share to fix the problem they created, a problem that can’t be fixed by future emissions reductions. (Reducing future emissions will help prevent the problem from becoming even worse but would be too late to counter what the fossil fuel industry has already unleashed.)
More than a dozen other state and local governments feel the same and have since filed similar lawsuits against the fossil fuel industry.
The industry itself has been forced to acknowledge the need to reinforce coastal infrastructure from rising seas after trying for years to discredit climate science. Audaciously, Big Oil wants taxpayers to pay for 60 miles of concrete seawalls, earthen barriers, floating gates and steel levees on the Texas Gulf Coast that would help some nearby communities but are designed primarily to protect petroleum facilities, including most of the state’s oil refineries. Nearly all of the $12 billion that Texas is seeking for the project would come from public funds. That would be on top of the estimate $20 billion in subsidies the fossil fuel industry gets from the U.S. government each year.
We filed our case in state court. As expected, the fossil fuel industry sought to move it to federal court and kill it. Industry lawyers misconstrued our position and claimed that the case was preempted by the Clean Air Act and implicates a variety of “federal interests,” including energy policy, national security, and foreign policy.
The Ninth Circuit Court of Appeals in Pasadena, in a unanimous May 2020 ruling, rejected the fossil fuel industry’s arguments and allowed our case to proceed.
These oil companies can no longer deny what they’ve tried to hide from the public for years. Our planet is warming, and the scientific consensus is clear. Carbon dioxide emissions from the burning of fossil fuels are by far the dominant cause of global warming. That is the stark truth.
While this legal battle has taken years and is not over, in some ways it has already succeeded. It has shown local and state governments that they can use the power of the law for good, to make a real difference in their constituents’ lives, even when it comes to massive problems like climate change.
And it forced oil giant Chevron to concede on the record in a court of law that man-made climate change is real.
“Chevron accepts the consensus of the scientific community on climate change,” Theodore “Ted” Boutrous, Jr. told U.S. District Court Judge William Alsup at a March 2018 hearing in our case. “That scientific consensus is embodied in the results of the Intergovernmental Panel on Climate Change, the IPCC. … And as I mentioned, the most recent IPCC report, was issued in 2013, is called ‘AR5.’ And it concluded—and I’ll just read it, and quote it. Quote: ‘It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century,’ close quote. … from Chevron’s perspective there’s no debate about climate science.”
The other oil companies in our case, Exxon Mobil, ConocoPhillips, BP, and Royal Dutch Shell, refused to participate in the proceeding or recognize that the court has jurisdiction over them. Their attorneys sat silent in the courtroom.
At the end, Judge Alsup was not about to let them off the hook.
“I want to give an order to all the other defendants that if you agree (sic) with anything that Mr. Boutrous said you have one week from today to file a statement explaining each and every statement that you disagree with,” Judge Alsup said. “Otherwise, I’m going to deem it that you agree. Any questions on that? You want two weeks? I’ll give it to you. But you can’t get away with sitting there in silence, and then later saying: ‘Oh, he wasn’t speaking for us.’ I’ll give you two weeks from today at noon.”
In their response statements to the court, none of the oil companies denied the existence of man-made climate change.