More than two dozen cities and states are suing Big Oil over climate change – they just got a boost from the US Supreme Court

photo credit: mphotoi via Canva

by Patrick Parenteau, Vermont Law & Graduate School and John Dernbach, Widener University

Honolulu has lost more than 5 miles of its famous beaches to sea level rise and storm surges. Sunny-day flooding during high tides makes many city roads impassable, and water mains for the public drinking water system are corroding from saltwater because of sea level rise.

The damage has left the city and county spending millions of dollars on repairs and infrastructure to try to adapt to the rising risks.

Future costs will almost certainly be higher. More than US$19 billion in property value, at today’s dollars, is at risk by 2100 from projected sea level rise, driven by greenhouse gas emissions largely from the burning of fossil fuels. Elsewhere in Honolulu County, which covers all of Oahu, many coastal communities will be cut off or uninhabitable.

Unwilling to have their taxpayers bear the full brunt of these costs, the city and county sued Sunoco LP, Exxon Mobil Corp. and other big oil companies in 2020.

Their case – one of more than two dozen involving U.S. cities, counties and states suing the oil industry over climate change – just got a break from the U.S. Supreme Court. That has significantly increased their odds of succeeding.

Suing over the cost of climate change

At stake in all of these cases is who pays for the staggering cost of a changing climate.

Local and state governments that are suing want to hold the major oil companies responsible for the costs of responding to disasters that scientists are increasingly able to attribute to climate disruption and tie back to the fossil fuel industry. Several of the plaintiffs accuse the companies of lying to the public about their products’ risks in violation of state or local consumer protection laws that prohibit false advertising.

The governments in the Honolulu case allege that the oil companies “are directly responsible” for a substantial rise in carbon dioxide emissions that have been driving climate change. They say the companies should contribute their fair share to defray some of the costs.

The gist of Honolulu’s complaint is that the big oil companies have known for decades that their products cause climate change, yet their public statements continued to sow doubts about what was known, and they failed to warn their customers, investors and the public about the dangers posed by their products.

Were it not for this deception, the lawsuit says, the city and county would not be facing mounting costs of abating the damage from climate change.

Importantly, the complaint is based on state – not federal – law. It alleges that the defendants have violated established common law rules long recognized by the courts involving nuisance, failure to warn and trespass.

The city and county want the companies to help fund climate adaptation measures – everything from building seawalls and raising buildings to buying flood-prone properties and restoring beaches and dunes.

Supreme Court could have killed these cases

Not surprisingly, the oil companies have thrown their vast legal resources into fighting these cases.

On April 24, however, they lost one of their most powerful arguments.

The U.S. Supreme Court declined to hear challenges in the Hawaii case and four others involving the seemingly technical question of which court should hear these cases: state or federal.

The oil companies had “removed” the cases from state court to federal court, arguing that damage lawsuits for climate change go beyond the limits of state law and are governed by federal law.

That theory would have derailed all five cases – because there is no federal common law for greenhouse gases.

The court made that position clear in 2011 in American Electric Power Co. v. Connecticut. Several state and local governments had sued five major power companies for violating the federal common law of interstate nuisance and asked for a court order forcing these companies to reduce their emissions. The Supreme Court refused, holding that the federal Clean Air Act displaced federal common law for these gases.

In Native Village of Kivalina v. Exxon Mobil Corp., a federal court of appeals extended that holding to also bar claims for monetary damages based on federal common law.

Sandbags sit outside a home near a beach in Oahu, Hawaii, where waves have eaten into the shoreline almost up to the house.
Several coastal communities, including in Honolulu County, facing increasing erosion want oil companies to help pay for protective infrastructure. AP Photo/Audrey McAvoy

To avoid this fate, Honolulu and the other plaintiffs focused on violations of state law, not federal law. Without exception, the federal courts of appeals sided with them and sent the cases back to state court.

What happens next?

The Honolulu case leads the pack at this point.

In 2022, the 1st Circuit Court in Hawaii denied the oil companies’ motion to dismiss the case based on the argument that the Clean Air Act also preempts state common law. This could open the door for discovery to begin sometime this year.

In discovery, senior corporate officers – perhaps including former Exxon Mobil CEO Rex Tillerson, who was secretary of state under Donald Trump – will be required to answer questions under oath about what the companies knew about climate change versus what they disclosed to the public.

Rex Tillerson, a smiling older man in a suit and tie, walks out of a courthouse with security guards.
In 2019, former Exxon Mobil CEO Rex Tillerson testified in a securities fraud lawsuit brought by the New York attorney general’s office. The judge ruled in Exxon’s favor. AP Photo/Seth Wenig

Evidence from Exxon documents, described in a recent study by science historians Naomi Oreskes and Geoffrey Supran, shows that the company’s own scientists “knew as much as academic and government scientists knew” about climate change going back decades. But instead of communicating what they knew, “Exxon worked to deny it,” Supran and Oreskes write. The company overemphasized uncertainties and cast doubt on climate models.

This is the kind of evidence that could sway a jury. The standard of proof in a civil case like Honolulu’s is “preponderance of the evidence,” which roughly translates to 51%. Ten of the 12 jurors must agree on a verdict.

Any verdict likely would be appealed, perhaps all the way to the U.S. Supreme Court, and it could be years before the Honolulu case is resolved.

Lawsuits don’t begin to cover the damage

It is unlikely that even substantial verdicts in these cases will come close to covering the full costs of damage from climate change.

According to the National Oceanic and Atmospheric Administration, in 2022 alone the U.S. sustained 18 weather and climate disasters that each exceeded $1 billion in damage. Together, they cost over $165 billion.

But for many of the communities most at risk from these disasters, every penny counts. We believe establishing the oil companies’ responsibility may also discourage further investments in fossil fuel production by banks and brokerage houses already nervous about the financial risks of climate disruption.

Patrick Parenteau, Professor of Law Emeritus, Vermont Law & Graduate School and John Dernbach, Professor of Law, Widener University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Investigating drinking water in the St. Louis area

Read the full story at KDSK.

The Missouri Confluence Waterkeeper, a nonprofit advocating for clean water, tested a total of 31 samples of water [for microplastics], mainly from north St. Louis County and north St. Louis. Researchers did the majority of testing between September and November 2022. They worked with the Illinois Sustainable Technology Center at the University of Illinois, Champaign-Urbana. Funding for the project came from the Missouri Foundation for Health.

Bill makes Farm to Food Bank program permanent in Illinois

Read the full story from FarmWeek. See also ISTC publications from the Farm to Food Bank program.

For two years, a pilot Illinois Farm to Food Bank program has paved a path to helping trim food waste and build food bank inventories with fresh, healthy food directly from farmers.

Now, legislation making the pilot program a permanent state program awaits Gov. J.B. Pritzker’s signature. House Bill 2879 establishes the Illinois Farm to Food Bank Program within the Department of Human Services (DHS) to help expand the availability of nutritious, locally grown, raised or processed foods for Illinois’ emergency food system.

The Farm to Food Bank pilot program has been administered by Feeding Illinois and was launched in 2021 with grant funding from USDA. The program connects food banks with Illinois farmers to establish a pipeline of fresh food for food pantries throughout the state. It also provides a secondary market for products that might be left in the field or trees, or blemished products.

EPA seeks feedback on its new interactive recycling market mapping tool

Read the full story at Waste Dive.

The U.S. EPA is seeking feedback on its new interactive Recycling Infrastructure and Market Opportunities Map in an effort to make the nationwide mapping tool more complete, accurate and easier to use.

The first iteration of the map includes locations of MRFs, composters, anaerobic digesters, transfer stations, secondary processing facilities, e-scrap facilities and other infrastructure. It also provides data on per capita generation and recycling for 16 material types, as well as other information on market influences such as bottle bills.

The EPA sees potential for its tool to be a “comprehensive resource” for visualizing and mapping postconsumer markets and infrastructure, but it says it needs more input on what additional details will make the map more functional for the industry. It will take comments through June 26.

The ammonium-ion battery: A safer and environmentally-friendly alternative to lithium batteries.

Read the full story at Environment + Energy Leader.

The increasing demand for electronic devices such as electric vehicles, cell phones, and computers has led to a surge in demand for lithium, a soft, alkali metal used in lithium-ion batteries. While lithium is abundant in certain countries, the mining process and safety concerns have prompted researchers to explore alternatives. LSU Mechanical Engineering Associate Professor Ying Wang is developing a non-metal rechargeable battery as a potential replacement for lithium batteries; The Ammonium-ion Battery

We need a second Earth to support our current consumption. We can do better if we think ‘circular.’

Read the full story at NIST.

Each year, scientists calculate the date at which humanity’s demands for the Earth’s resources exceed the Earth’s capacity to regenerate what we need in a year. It’s called Earth Overshoot Day

In 1971, it fell on Dec. 25. Disturbingly, by 2022, it fell on July 28. 

In short, we humans need 1.75 Earths to support our current rate of consumption! That is unsustainable, and we have to make changes. 

So, how can we slow down our current consumption rate, while ensuring equitable progress and resources for all? 

Think about the products you use every day. They are created, manufactured, used and thrown away. This is often called the “take, make, use, dispose” economy. The things we throw away, even things we think we’re recycling

, languish in a landfill, often forever. 

If we’re going to secure a sustainable future on the only planet we have to live on, we must transition to a circular economy. The circular economy aims to reduce our reliance on virgin ecological resources by keeping materials in use indefinitely. Rather than retired items going into landfills, they will be recovered in some way and used again in the future. 

A circular economy will: 

  • Help keep toxins from leaking into our environment; 
  • Help stabilize our supply chains by creating alternative sources of raw material supply;
  • Preserve valuable natural resources and divert them from landfills through recovery strategies, such as reuse, repair, refurbishment, remanufacturing and recycling; and
  • Promote the transition into renewable energy, reducing our dependence on fossil fuels.

The link between business value creation and ESG

Read the full story at GreenBiz.

A new report from Bain & Co. and EcoVadis connects sound ESG management across supply chains with better margins.

Lego lays first bricks for $1B ‘carbon neutral’ toy factory in US

Read the full story from GreenBiz.

Lego Group has begun laying the first building blocks for its planned $1 billion “carbon-neutral” factory in the U.S., as the toy manufacturer steps up efforts towards meeting its global climate goals.

The Danish firm announced at construction work has officially started at the new facility in Chesterfield County near Richmond, Virginia, with work expected to be completed by 2025.

The 340-acre site is set to include on-site solar power generation comprising 35,000-40,000 ground-mount photovoltaic (PV) panels and 15,000-20,000 roof PV panels, altogether delivering a total electricity generation capacity of 30-35MW, it said.

Overall, Lego said the solar panels would be able to meet all of the factory’s power needs, generating enough electricity to power the equivalent of 10,000 average U.S. homes.

In addition, Lego said it planned to use energy-efficient production equipment throughout the construction process, and also during operation of the facility, set to be the firm’s second in the U.S. once manufacturing begins.

Heat pumps have become a buzzword. So, how exactly do they work?

Read the full story at Fast Company.

As a tool in a larger strategy to electrify everything in our homes, heat pumps are a key part of fighting climate change.

Novel device for collecting microplastics

Read the full story at Azo Cleantech.

Microplastics (MPs), plastic debris smaller than 5 mm, implicitly destroy the environment. Traditionally, they have been collected and removed from water via mesh filtration, which is ineffective. In this regard, scientists from Japan created a high-enrichment microfluidic system that uses acoustic focusing to collect and remove 10–200 μm MPs from wastewater without recirculation. On test samples, its collection rates and enrichment ratios ranged between 70 and 90% and 50 and 100%, respectively.