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September 25, 2017

Legal Update
Dylan Sanders

Are state law public nuisance suits over global warming in Massachusetts’ future?

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Last week the cities of San Francisco and Oakland followed three other coastal California communities in filing lawsuits against the largest investor-owned fossil fuel companies, seeking to force them to create an “abatement fund” to pay for infrastructure costs—allegedly in the billions of dollars—the cities say they will incur to respond to sea level rise, storm surges and other effects of global warming.

The lawsuits, which follow suits recently filed by Imperial Beach and by San Mateo and Marin counties, name as defendants BP, ExxonMobil, Chevron, and Shell, among others. The suits allege that the companies have long understood that the use of the fossil fuels they extract, refine, market, and deliver would drastically change the earth’s climate.

With Massachusetts’ coastal communities also facing billions of dollars in infrastructure, adaptation, and resiliency costs, are similar lawsuits in the Bay State soon to follow?

The main legal theory in the California lawsuits is that the fossil fuel companies have contributed to a “public nuisance,” meaning a substantial and unreasonable interference in a right common to the public. Oakland and San Francisco allege that “global warming-induced sea level rise already is causing flooding of low-lying areas… that border San Francisco Bay, increased erosion, and salt water impacts to water treatment systems.” This “threat to human safety and to public and private property,” the cities allege, “is becoming more dire every day as global warming reaches ever more dangerous levels and sea level rise accelerates.”

The suits claim that the defendant companies “are qualitatively different from other contributors to” these harms, “given their in-house scientific resources, early knowledge of global warming, commercial promotions of fossil fuels as beneficent even in light of their knowledge to the contrary, and efforts to protect their fossil fuel market by downplaying the risks of global warming.”

Common law public nuisance lawsuits have been tried before in the climate change context, without success. The potential for asserting such a claim under federal law ended with the U.S. Supreme Court’s 2011 decision in American Elec. Power Co. v. Connecticut, holding that the EPA’s power to regulate greenhouse gas emissions under the Clean Air Act—confirmed in 2007 by Massachusetts v. EPA—“displaced” federal common law nuisance claims.

The new California actions, however, are based on state common law. In AEP, the Supreme Court left undecided whether public nuisance claims based in state law were also displaced by the Clean Air Act. There are strong arguments—statutory and otherwise—that it does not. (The energy companies, however, have removed the three previously filed cases to federal court, arguing that the communities’ claims, though styled as state law claims, actually arise under federal common law.  The Oakland and San Francisco actions will face a similar, initial challenge.)

The California plaintiffs will face other significant obstacles, including having to show a sufficient causal link between the particular harms alleged and a particular defendant’s alleged conduct. The defendants can be expected to argue that their conduct was permitted and even encouraged by the government and was beneficial to society, and that the cases raise policy and political questions not suitable for decision by the judiciary.

On the other hand, the new cases may have at least two things going for them. For one, there is growing evidence that harms from climate change are not only imminent but already occurring. For another, there is the information uncovered by extensive investigative reporting, foremost by Inside Climate News and The Los Angeles Times, about fossil fuel companies’ long-held knowledge that climate change would follow from extensive use of their products, and about the companies’ campaigns to downplay the risks and suggest uncertainty. The new lawsuits make extensive use of these emerging corporate history reports, alleging that the defendants “borrowed the Big Tobacco playbook.”

Massachusetts, too, recognizes a state common law claim for public nuisance. As in other jurisdictions, a nuisance here is a “public” nuisance when it interferes with the exercise of a public right or causes a common injury. Will Boston or any other Massachusetts community, or perhaps the Massachusetts Attorney General, join in this new wave of suits against fossil fuel companies, seeking an “abatement fund” to pay for infrastructure changes made necessary by global warming?

Attorney General Maura Healy has already joined California and five other states in another climate change lawsuit—one filed last week against the federal Department of Transportation— seeking to force the DOT to implement greenhouse gas performance standards for the nation’s highways, which were rolled out under the Obama administration but have been put on indefinite hold under the current president.

In the DOT lawsuit, the Attorney General emphasized that Massachusetts is already experiencing the effects of climate change, and that the state faces unique threats from increased global warming, including “loss of land mass to coastal erosion and infrastructure damage from sea level rise and flooding; increase in heat waves; changes in weather patterns in Boston, within the next 50 to 100 years, to more closely resemble those found today in Richmond, Virginia, or even Atlanta, Georgia; a decline in air quality due to projected temperature increases, which could cause or exacerbate asthma and other human health effects; an increase of 25 to 55 more days each summer with temperatures higher than 90 degrees; and changes in the amount, frequency and timing of precipitation.”

Is a public nuisance suit a smart option for Massachusetts and cities and towns along the Massachusetts coastline to consider, to address these growing threats?