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NJ is suing Big Oil for causing the climate crisis. What would it take to win?
By
Jordan Gass-Poore'
Published Nov 21, 2022
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Kena Betancur/VIEWpress
By
Jordan Gass-Poore'
Published Nov 21, 2022
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New Jersey is the latest state to sue some of the world’s largest oil and gas companies, alleging they deceived the public for decades about the role fossil fuels play in exacerbating human-caused climate change and cost New Jerseyans billions of dollars in cleanup after deadly storms like Hurricane Sandy.
The lawsuit, filed in New Jersey Superior Court in October, claims Exxon Mobil, Shell Oil, Chevron, BP, ConocoPhillips, and the American Petroleum Institute trade group – of which all the companies are members — violated the state’s Consumer Fraud Act through disinformation campaigns that began in the 1980s.
“We know this is a tough fight,” New Jersey Attorney General Matthew Platkin said. “I don't think the oil and gas companies that we're suing are going to lie down and say they're agreeing with us, but we're prepared to bring the fight on behalf of the residents of the state.”
New Jersey follows nearly two dozen other states, counties and cities across the country that have brought similar complaints against the fossil fuel industry in recent years. But none of these cases have been resolved yet, raising questions about how a legal team proves who’s at fault for a calamity as large as climate change.
There is mounting evidence to link emissions caused by the burning of fossil fuels to some types of extreme weather, and some legal experts said that this growing connection would be enough for pro-climate verdicts.
The oil and gas companies, meanwhile, accuse elected leaders and jurisdictions of wasting taxpayer money on this litigation, even as they try to get the cases moved into courts that might favor their side.
Theodore J. Boutrous Jr. of Gibson, Dunn and Crutcher, the firm that represents Chevron, called the New Jersey attorney general’s lawsuit “a distraction from the serious problem of global climate change, not an attempt to find a real solution.”
An aerial view of a community in Middlesex as floodwater covers streets after the remnants of Hurricane Ida hit New Jersey, on Sept. 2, 2021.
Tayfun Coskun/Anadolu Agency via Getty Images
Platkin would not speculate on the monetary award the state could receive from the lawsuit, but Bradley Campbell, president of the Conservation Law Foundation and former commissioner of the New Jersey Department of Environmental Protection, said the state could receive billions of dollars due to the historical damage from climate change.
“Just one storm can cause damage in the tens of billions of dollars before you even get to the kind of chronic impacts of climate change that are already occurring,” said Campbell. “Ultimately, you will see people seeking damages for in the courts.”
He also said health issues caused by disasters can have huge costs that the lawsuits might help recoup.
Quite a few suits
Platkin said the oil and gas companies in question knew about the environmental dangers posed by burning fossil fuels for decades, and instead of warning the public, they hid their research. The lawsuit accuses American Petroleum Institute of orchestrating climate change denial campaigns on behalf of these companies. It points to several internal reports produced by the companies over decades that described climate effects caused by use of their products — and to marketing campaigns intended to cast doubt on that relationship, Platkin said.
The attorney general’s office seeks an injunction against the American Petroleum Institute and the oil companies to stop their allegedly deceptive public relations campaigns along with civil monetary penalties and damages, including natural resource damages. These include the state’s tidal wetlands, which could disappear because of rising sea levels caused by climate change.
We can't stand idly by when that's happening, especially when we have legal recourse.
Matthew Platkin, New Jersey attorney general
“When you look at the impacts of climate change, when you look at sea level rise and the impact that's happening in communities across our state, it's pretty hard to look at that and then know that these companies knew about this risk decades ago,” Platkin said. “We can't stand idly by when that's happening, especially when we have legal recourse.”
A number of these lawsuits have emerged in the tristate area, an attempt to force oil and gas companies to pay for the damages incurred by extreme weather caused by climate change. More than $8 billion of the damage caused by Hurricane Sandy was due to sea level rise caused by climate change, according to a 2021 study by Nature.
In 2020, Hoboken became the first New Jersey city — and the 20th community in the country — to sue Exxon Mobil and other gas companies in state court, alleging the companies misled the public about the damaging climate impacts of fossil fuels. New York City filed a similar lawsuit the following year.
Both allege that Big Oil violated consumer protection statutes, which means if a court rules in the state’s favor the companies will be required to warn the public of the known dangers of their products. Similar consumer protection lawsuits were first used in cases against the tobacco and pharmaceutical industries.
The fate of the furious
None of the lawsuits similar to New Jersey’s against the fossil fuel industry have been resolved yet, partly due to the cases getting kicked around from state to federal court.
In most of these lawsuits against the fossil fuel industry, including the case filed by Hoboken, the oil and gas companies have appealed in attempts to get their cases heard in federal court — where national regulations around drilling and air pollution could invalidate the legal claims against them.
Some states or tribes have stronger environmental regulations than federal law, but the oil and gas companies cited in these lawsuits argue that climate policy is a federal issue, so federal environmental policies should preempt state law. Some critics call this move a delay tactic and believe the federal court may be more likely to side in the companies’ favor.
Hoboken won in August its appeal against Big Oil to be heard in state court. Hoboken Mayor Ravi Bhalla said the companies are attempting to escape accountability.
“You know, just because climate change is an important topic, doesn't mean that it's beyond the ability of a state court to handle this type of litigation, because it impacts Hoboken,” he said. “Our claims also are pursuant to state law. They're not pursuant to federal law.”
Hurricane Sandy flooded 80% of Hoboken and caused an estimated $100 million in private property damage and $10 million in public property damage, according to city officials.
An abandoned car sits on a flooded street in Hoboken the morning after the remnants of Hurricane Ida drenched New Jersey, on Sept. 2, 2021.
Gary Hershorn/Getty Images
The lawsuit seeks to recover these funds and others to pay for the costs of future extreme weather events caused by climate change that’s been exacerbated by oil and gas companies.
Hoboken is vulnerable to sea level rise, as more than half of its residents live within 5 feet of its high tide line, according to the lawsuit.
Exxon Mobil spokesperson Casey Norton said lawsuits like Hoboken’s and New Jersey’s “waste millions of dollars of taxpayer money and do nothing to advance meaningful actions that reduce the risks of climate change.”
Bhalla said costs associated with the lawsuit come at no expense to Hoboken or the city’s residents. Instead, the case’s legal fees are funded by the Institute for Governance and Sustainable Development and through a contingency arrangement. The state attorney general’s office said compensation for these services will be paid solely by funds recovered in any litigation.
Shell said in a statement that the company’s position on climate change “has been a matter of public record for decades” and that it agrees action is needed now, which is why it’s “committed to playing our part by addressing our own emissions and helping customers to reduce theirs.”
Andrea Woods, a spokesperson for the American Petroleum Institute, defended the fossil fuel industry’s efforts to reduce carbon emissions and said the New Jersey lawsuit’s claims are false.
“The record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false,” Woods said.
ConocoPhillips said it does not comment on active litigation matters. A representative of BP could not be reached for comment by publication of this article.
Tagged
climate change
law
environment
flooding
big oil
natural gas
lawsuit
new jersey
oil companies
Jordan Gass-Poore'
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