Climate Change and Lawsuits Against Big Oil in California

Sea levels are rising, fires are raging, and as alternative rock band Smash Mouth told us in their 1999 hit song All Star:

It’s a cool place and they say it gets colder
You’re bundled up now, wait till you get older
But the meteor men beg to differ
Judging by the hole in the satellite picture
The ice we skate is getting pretty thin
The water’s getting warm so you might as well swim
My world’s on fire, how about yours?

I know. I can hear your groans over the reference. Whether you like the song or not, the climate change conversation has only grown more desperate over the last 20 years. In fact, “my world’s on fire, how about yours” became abundantly clear to Californian’s last fall as wildfires and their resultant smoke engulfed our state.

Failures to legislate climate change at the federal and international level are not keeping California cities and counties from taking action to hold oil companies responsible for rising sea levels, erosion, and flooding.

Cities and Counties vs. Energy Companies

Recently, the City of Imperial Beach joined Marin and San Mateo counties in their lawsuit against Chevron, ExxonMobil, and others. The municipalities argue “Big Oil” has spent decades denying climate change impacts; impacts they knew would occur.

There are more than a dozen similar lawsuits taking place around the country. It appears municipalities are taking a page out of the “tobacco lawsuit” playbook, not unlike the opioid lawsuits, in an attempt to hold energy companies responsible for flood control measures.

The lawsuits are interesting. In the California case the causes of action include: public nuisance, strict liability, failure to warn, design defect, private nuisance, negligence, failure to warn, and trespass.

Arguments are presently taking place in federal court with plaintiffs arguing the lawsuit should be heard in state court, where they expect a better outcome. Naturally, defendants’ hope to keep the case in the federal district court for the same reason.

But Wait… Energy Companies Fight Back!

This isn’t the first rodeo for energy companies. They’re not going to roll over and let these municipalities hold them responsible for compensatory and punitive damages without a major fight.

In spring of last year “Exxon responded… by petitioning a state court in Tarrant County, Texas — near the company’s headquarters in Irving — to subpoena California officials and lawyers involved with the lawsuits. In a novel legal tactic, Exxon alleges the local government officials are defrauding buyers of municipal bonds by not disclosing to lenders the climate risks they have claimed in their lawsuits.”

If you care to read between the lines, ExxonMobil is basically saying “you knew about the climate risks you claim we knew about and you didn’t disclose that to your lenders.” Or, take it a step further, “these lawsuits are going to be very expensive and we’re going to make them even more expensive for your municipalities.” This is going to be a war!

What does this have to do with legal intelligence?

Assuming this case gets kicked back to the state court, wouldn’t you want to have all available intelligence about the judge handling the matter? Whether you are plaintiff or defense counsel this lawsuit involves punitive damages. Do you want to go into the lawsuit blind? Or, do you want to gather intelligence on the judge as if you’re a CIA agent gathering intelligence to prevent a nuclear war?