See You In Climate Court

Fossil fuel boosters don’t seem worried about government rules. What about lawsuits?

Feature | by Gregory Beatty

As crazy as it seems today, there was a time not so long ago when corporate executives, PR firms, government officials and others with ties to the tobacco industry denied tobacco caused cancer and other harmful health effects.

The scientific evidence, of course, said otherwise. But for several decades starting in the 1950s, the tobacco industry mounted a relentless propaganda campaign to discredit that research and encourage people to continue to use their products.

Now, we’re seeing history repeat itself with climate change. This time, it’s the fossil fuel industry (and its supporters in business and government) pushing denial. And they’re mounting a desperate propaganda campaign to try to wring every last dollar out of their once prized assets.

Unfortunately for them, the science of climate change — backed up by the real-world changes we’re starting to see — is irrefutable.

Unfortunately for us, we don’t have much time left to rein in our greenhouse gas emissions.

To force the issue, environmental groups are increasingly turning to the courts. In some instances, such as a high profile 2015 case in the Netherlands, citizens are suing their governments to demand more forceful action to address climate change. In others, it’s the fossil fuel industry that’s the target.

Ironically, the tobacco industry serves as a model here, too.

The Tobacco Parallel

“The parallels between tobacco and climate change are two-fold,” says Andrew Gage, a staff lawyer with West Coast Environmental Law in Vancouver.

“There’s the actual denial aspect where the tobacco industry was directly funding misinformation about the health impacts of tobacco,” Gage says. “There’s also the issue of where the public saw the responsibility laying.

“Even once the health impacts were known, there were still people who said ‘Yes, but the smokers bought the product and smoked it, so they’re responsible. The companies merely provided the product.’”

As evidence emerged of the extent to which the tobacco industry had lied and deceived everyone over the decades, though, that sentiment quickly shifted, says Gage.

“The public said ‘No, tobacco companies actually do have some responsibility when they knowingly sell a product that has these huge impacts.’”

Just as happened with tobacco companies, tons of evidence has emerged about how fossil fuel companies knew as early as the 1960s that climate change was real, and that their products were responsible.

Yet decades later, here we are.

One project Gage works on at West Coast Environmental Law involves the idea of local governments suing fossil fuel companies to get compensation for the many upgrades they’re going to have to make to infrastructure, emergency preparation, healthcare and more to cope with the effects of climate change.

The needs of each community will vary depending on location, of course. But when you consider the range of challenges they’ll be facing — from rising sea levels and more vicious storms to forest fires, drought, climate refugees from other countries and more — the potential liability could be astronomical.

The overall goal, says Gage, is to deliver a much needed financial reality check to the fossil fuel industry. “Our position is that as long as you have a situation where products don’t reflect their true cost it distorts both the economy and your society as our communities, for decades, have been making planning decisions around the assumption of cheap energy.”

Fossil fuels don’t reflect their true cost in several different ways. Think of the many thousands of abandoned oil wells that companies have walked away from, leaving governments to clean up. Or the damage done to land and water worldwide through fossil fuel extraction. But the biggest unaccounted cost of fossil fuels is emissions, which since the start of the Industrial Revolution in the mid-1700s we’ve just been releasing into the atmosphere.

Distorting the market that way gives fossil fuels an unfair advantage, says Gage.

“Until you actually start reflecting the true costs in the balance sheets of those companies, those products look much more lucrative and are sold much more cheaply than they should be. It distorts everything, and means that governments and investors think there’s this great opportunity to support this industry and make lots of money, when actually the industry is costing us all.”

Court Is In Session

Legal actions are already underway in several American jurisdictions including San Francisco, New York, Oakland and Rhode Island. Lawsuits of various stripes have also been launched in Germany, the Philippines, Ireland and other international locations.

In Canada, says Gage, Toronto, Vancouver and Victoria are all contemplating actions. In B.C. specifically, municipalities have been pressing the provincial government to pass special legislation that would provide a legal structure for them to demand accountability from fossil fuel companies for their share of the costs to prepare for climate change.

“Going back to the issue of tobacco litigation, it arose when provinces started enacting tobacco damages recovery legislation,” says Gage. “That confirmed it was possible to sue tobacco companies, along with what type of evidence could be brought in, and how the responsibility could be apportioned between the defendants.”

Legal precedents already exist for that type of product liability action, so the legislation isn’t vital. But it would paint a clear picture for the fossil fuel industry and the broader denial movement of what awaited them. [see sidebar]

Time being of the essence in confronting climate change, litigation — and the many years it would likely take to win a verdict — might seem like a futile gesture.

Gage disagrees.

“The reality is that the moment you even start talking about litigation that affects the risks these companies face,” he says. “So it starts affecting their behaviour even before you file your cases, and certainly well before you would win a case.”

Because of the fiduciary duty owed to shareholders, fossil fuel companies have to inform them about the potential risks of climate litigation. Those risks, which banks, governments, pension funds and others must also assess, get factored into investment decisions that are made to support (or not support) the fossil fuel industry.

It also gives companies an incentive to do something positive for the environment, such as boost their investment in green energy — as Shell has done. Or to support a $30 a tonne carbon tax proposal, as Exxon Mobil has done as part of the Green New Deal in the U.S.

“It’s a somewhat cynical ploy for Exxon Mobil, where the government would also insulate fossil fuel companies from litigation,” says Gage. “But the point is, it sees the risk as serious enough that it is publicly advocating for a carbon tax.

“As more and more cases pile up and the likelihood of them being successful grows, it’s really important for these companies to be able to demonstrate that they’ve been acting responsibly so they can say in court, ‘Yes, our products caused this. But we’re doing all we can to [help].’”

Right now, though, that ain’t happening. And with the clock ticking, the fossil fuel industry and its backers in the denial movement need to do some serious thinking.

If they don’t, they could end up in court.


Sidebar

Saskatchewan In The Crosshairs

The Saskatchewan Party has been in power for 12 years now, and its record on climate change is pretty dismal. From refusing to regulate oil and gas industry emissions, to Brad Wall’s 2016 Throne Speech diss of climate change as “misguided dogma”, to Scott Moe’s quixotic carbon price crusade, to the shenanigans of burying a carbon price study because it showed a minimal impact on the provincial economy, to going all-in on carbon capture to keep burning coal for power generation, to touting a Prairie Resilience climate plan that focuses more on trying to prepare for climate chaos than reducing emissions, it’s been one fuck-up after another.

“The Saskatchewan government does acknowledge the existence of climate change,” says Saskatoon lawyer Taylor-Anne Yee, who works with the Saskatchewan Environmental Society.

“However, they do not speak about climate change as an issue that we actively make significant contributions to, and as something we can stop or decrease,” Yee says. “Nor do they actively acknowledge that such contributions are causing many of the health, economic, and social issues we’ve been seeing locally and globally.”

“In fact, they consistently minimize Saskatchewan and Canada’s role in global climate change.”

Given the close ties between the Saskatchewan Party and the resource extraction industry, it’s hardly surprising. Then there’s the politics in play, with Scott Moe joining forces with Jason Kenney in Alberta, Doug Ford in Ontario, and Brian Pallister in Manitoba to shill for Andrew Scheer and the federal Conservatives in the upcoming October election.

After titillating Canadians for months about the Conservative plan to address climate change, Scheer finally released it on June 19. The main plank requires heavy emitters to invest a “set amount” in research and development if they fail to keep emissions below a certain level. There was also some idea about using Canadian technology and resources (primarily natural gas) to help other countries reduce their emissions, and a two-year $1.8 billion energy efficiency tax credit for homeowners.

Scheer probably made some Conservative heads explode by acknowledging climate change, but otherwise it was thin gruel with no hard targets, plenty of intrusive government regulation, a cost for carbon that will ripple though the economy just like the TRUDEAU CARBON TAX (emphasis theirs), and more.

National Post columnist John Ibbitson called it a “prop” Scheer could waive on the campaign trail.

Obviously for Moe, Kenney, Ford and Pallister, the goal is to elect a Conservative government, so the climate change file can be shelved like it was during the Harper years.

That would be sad news for the world, and it could lead to more climate litigation, Yee says.

“In upholding the Greenhouse Gas Pricing Pollution Act as constitutional, both the Saskatchewan and Ontario Court of Appeals incorporated climate change reasoning into their decisions.”

In Quebec, Yee adds, there’s a group of youth who are trying to launch a class action against the federal government for violating their right to a healthy environment by not doing enough to combat climate change.

Quebec has a provision in its provincial Charter that protects the right to a healthy environment. Saskatchewan doesn’t, so that would be a barrier to a similar lawsuit here, says Yee.

Or maybe not.

“With the growing number of climate litigation cases coming up in the world and in Canada, that might change. The precedents they set may eventually become robust enough to form a cause of action,” Yee says.

“As long as the Saskatchewan government continues to choose to not do what is needed to combat climate change, they may leave themselves vulnerable to such legal action.”

And that’s something that could ultimately cost Sask. taxpayers a lot more than a carbon tax. /Gregory Beatty