Press Independent
Miami Beach
The extraordinarily devastating fires in Los Angeles County have once again raised the burning question as to what extent is government responsible for anticipating and protecting people’s lives and properties from climate change. As the fires raged and hydrants ran dry in hours, the Los Angeles Department of Water and Power was sued for failing to maintain a 117-million gallon reservoir that had been dry for nearly a year. The public utility claimed the delay was normal due to the bidding process, and the demand for waters over 15 hours was four times normal.
Climate change was apparently a significant factor in the enormity of the disaster. Extremely dry and dense vegetation together with a strong Santa Ana wind created a Hell on Earth. Should not a negligent entity, whether it be governmental or private, be liable for a failure to protect the community from climate change? We recall that tobacco and drug companies were moved to settle cases after many years of denials and delays, so why not go after the oil companies whose officers allegedly knew about climate change for years and concealed the awful truth?
That is the trend of the law in some parts of the world, where even the death penalty has been suggested as warrantable for criminal negligence. But not in the United States, at least not yet. According to the New York Times there are a slew of cases in the pipeline along those lines. For example:
“A case filed by the City and County of Honolulu against Sunoco and other companies alleges that they deceived the public about climate change. This case was filed in Hawaii state court, but the companies argue that the regulation of interstate pollution is governed by federal, not state, law. The case could end up before the U.S. Supreme Court. In June, the Supreme Court asked the solicitor general, who supervises government litigation, for her input, a sign it could take up the case. If the jurisdiction question is taken all the way to the Supreme Court, it may not bode well for environmentalists, given the court’s majority of conservative justices. In a filing to the Supreme Court in February, lawyers for Sunoco and the other companies wrote that the cases ‘present a serious threat to one of the nation’s most vital industries’ and that allowing them to proceed was a ‘blueprint for chaos.’ The company declined to comment on Thursday.” (Lawsuits Are Exploding. Are Homicide Charges Next? by Karen Zraick, Climate, New York Time 2024-09-12)
I contacted Capt. Michael A. Lilly, USN (Ret.) former Attorney General of the State of Hawaii, who is highly regarded for his handling of cases in the state supreme court, and, in private practice, for winning a celebrated equal rights case against the state in the Supreme Court of the United States.
“There are several major reasons why these climate change lawsuits against oil companies will fail, he opined:
“First, under the Supremacy Clause of the US Constitution, federal law governing the states is supreme over state laws. Climate lawsuits are not traditional state law tort (civil damage) claims. Torts generally involve negligence by a specific person causing a specific injury to a specific person, such as a rear end car crash. In the Honolulu case, the plaintiffs claim that oil companies concealed the climate damages to the plaintiffs from using fossil fuels which created greenhouse gases. The Supreme Court has held that suits claiming damage from the air and water are subject to federal law and not state law. States cannot use tort litigation to set nation-wide policy.
“Second, climate change lawsuits are interstate, not intrastate, in nature. The purpose of these suits is to establish interstate national policy involving all the states, further undermining the claim that they are traditional state tort claims.
“Third, it is well-established that there is no federal common law public nuisance claim including climate change. This means such litigation can only occur at the state level. Because there is no traditional state tort claim for climate change, all such litigation will fail.
“Fourth, plaintiffs will have a difficult time proving causation between use of fossil fuels and climate change.
“Fifth, oil companies have argued that they have followed environmental policies enacted in the US and thus cannot be held to violate any standard.
“Finally, the issue is a political one that should be resolved by legislative bodies and not courts.
“The US Supreme Court will ultimately hold that state courts may not litigate tort claims against oil companies for concealing their contribution to greenhouse gases and hence climate change. The issues involve national political issues and not individual state claims and there is no federal right to litigate tort claims.”
# #
(1) Image Credit
Department of Interior Office of Native Relations
Share
Save
