Baltimore wants fossil fuel companies to help pay the high cost the city says it faces to deal with climate change impacts to its infrastructure and—along with a growing number of other municipalities and states since 2017—has taken the claim to court.
The U.S. Supreme Court on May 17 weighed in for the first time on the dispute—more narrowly than Baltimore lawsuit participants wanted—but offered some sense of how the cases could proceed.
In its suit, filed in 2018, the city named as defendants 27 leading energy firms that include BP, ExxonMobil, Marathon Oil, Chevron, Crown Central Petroleum Corp., Royal Dutch Shell, ConocoPhillips and Hess Corp.
Industry says the decision to return the case to a federal appeals court for a new ruling on whether that suit, and the others, belong in state or federal court offers a path to keep litigation in the latter venue—based on broad global climate change issues, federal government involvement and what observers say would offer a better response to their arguments.
However, one environmental law expert said the ruling is far from one to “quash all climate litigation."
Sara Gross, who heads a Baltimore litigation division, is optimistic the city's case will eventually return to state court. “While this isn’t the outcome we wanted, we are fully confident that the city will prevail again when the remaining issues are considered by the Court of Appeals,” she said in a statement.
Whether the Baltimore ruling is a Hail Mary long-shot win for industry or will have little impact on case merits or future rulings remains to be seen.
The high court ruled 7-1, with Justice Sonia Sotomayor dissenting and Justice Samuel Alito recused, that a Philadelphia appeals court decision backing a lower court ruling to return the case to state court, which the municipalities prefer, was made too narrowly and needs a new review, as the oil firms argued. But, said Sotomayor, “Baltimore, which has already waited nearly three years to begin litigation on the merits, is consigned to waiting once more.”
About 19 U.S. municipalities, five states, Washington, D.C., and one trade association have filed complaints against the world’s largest investor-owned fossil fuel companies for deceiving the public and policymakers about the dangerous climate impacts of their products “and should be held accountable for the consequences,” says the Sabin Center for Climate Change Law at Columbia University.
Many of the cases point directly to infrastructure costs, Korey Silverman-Roati, Sabin Center climate law fellow, told ENR. “Those costs will only go up as climate impacts increase, and a key question remains about who will pay,” he says. Hawaii says it will cost $15 billion to update roads and bridges from climate change related impacts.
But Paul Afonso, senior vice president and chief legal officer of the American Petroleum Institute, which represents 600 oil and gas affiliated companies and has been named in a number of the suits, said for the past 20 years the industry “has achieved its goal of providing affordable, reliable American energy” while substantially reducing emissions. “Any suggestion to the contrary is false," he said.
Federal appellate courts in Denver, San Francisco and Boston had sent cases against big oil companies back to state court. The Supreme Court on May 24 ordered those cases returned to the appeals courts for reconsideration in light of its Baltimore ruling.
Even so, a new study released May 18 said sea-level rise that can be attributed to human-caused climate change caused $8.1 billion in damage during Superstorm Sandy in 2012—about 13% of the cost of damage across the New York-New Jersey-Connecticut region. The analysis, by Princeton, N.J.-based research group Climate Central, Rutgers University and Stevens Institute of Technology, says climate change has been responsible for 4 in. of regional sea-level rise over the past century.
Researchers used historical and alternative sea level reconstructions and flood simulations to determine how much climate change contributed to the damage.
“This study is the first to isolate the sea-level rise effects attributable to human activities and put a dollar sign to the additional coastal flooding damage they cause,” said Philip Orton, a study co-author and research associate professor in the civil, environmental and ocean engineering department at Stevens Institute, Hoboken, N.J.
Cities Cite Big Risks
Baltimore claims, in its suit, that fossil fuel companies have known for decades that burning their fuel creates greenhouse gasses that warm the planet and change climate. They also knew the outcome would be catastrophic, the suit says. Baltimore and its residents have suffered the consequences of flooding and sea level rise and want the companies to help pay for damage and the cost of steeling the city against further impact. The city seeks unspecified compensatory damages, civil penalties and punitive damages.
The most recent climate change lawsuit was filed last month by nearby Ann Arundel County, Md., which has 530 miles of shoreline, against 26 companies including ExxonMobil, BP, Chevron, and Shell.
New York City filed a consumer protection lawsuit in state court in April against API, ExxonMobil, Shell and BP for deceiving the public about the role their products play in the climate crisis. The new complaint follows a federal appeals court ruling last month that upheld dismissal of the city's 2018 lawsuit that “essentially sought to regulate the production and sale of fossil fuels—otherwise lawful commercial activity—under New York common law,” says a commentary from law firm Taft Stettinius & Hollister.
Letting the lawsuit proceed would “upset the careful balance that has been struck between the prevention of global warming on one hand and energy production, economic growth, foreign policy and national security on the other,” said the appellate court. It said state law claims were preempted by federal environmental law.
The city’s new lawsuit instead seeks civil penalties under the NYC consumer protection law that prohibits deceptive practices in the sale of consumer goods or services.
The first two climate change cases against the fossil fuel industry were filed by San Mateo and San Francisco in California in 2017, with others from Boulder, Colo.; King County, Wash.; Rhode Island; Massachusetts; Delaware; Connecticut; Hawaii; Minnesota; Hoboken, N.J.; Charleston, S.C. and Pacific Coast fishermen.
Minnesota said it expects to pay $6 billion annually to repair road damage caused by climate change. Hoboken said a 14-ft storm surge submerged up to 80% of the city during Superstorm Sandy, causing an estimated $100 million worth of damage, with an estimated $500 million invested since to build waterfront flood protection. The city recently broke ground on a $230-million federally funded effort, under the Rebuild by Design program, which includes construction of a network of nearly 9,000 ft of barriers and flood walls spread through the city.
After the Supreme Court Baltimore ruling, lawsuits from Rhode Island, Colorado and the California communities will be sent back to appeals courts to consider the oil companies’ other arguments that had been rejected.
“This narrow procedural ruling may ultimately have little impact on efforts by Baltimore and the other states and municipalities to hold oil and gas corporations accountable,” said Richard Wiles, executive director of advocacy group Center for Climate Integrity. “Virtually every court to consider this jurisdictional issue has agreed that climate damages cases filed in state court belong in state court.”
A spokesman for BP refused to say why the company would prefer the case to be heard in federal court, but a lawyer for the companies said in oral arguments before the Supreme Court that it is common sense to conclude that federal law governs claims alleging injury caused by worldwide greenhouse gas emissions and noted that there is a risk of local prejudice in state courts.