De Blasio’s Climate Suit Against Big Oil Faces Uphill Battle

Seeking damages from fossil fuel companies is a promising new tactic, but legal experts warn of 'significant obstacles'


Mayor Bill de Blasio announced plans on Wednesday to divest the city’s $190 billion pension fund from fossil fuel stocks, while also embarking on an uphill legal battle aimed at holding the five largest oil companies responsible for their role in causing climate change that led to Hurricane Sandy.

“New York City is standing up for future generations by becoming the first major U.S. city to divest our pension funds from fossil fuels,” the mayor said in a statement. “At the same time, we’re bringing the fight against climate change straight to the fossil fuel companies that knew about its effects and intentionally misled the public to protect their profits.”

The pledge of divestment, a joint initiative between Mayor de Blasio and New York City Comptroller Scott Stringer, would relinquish the $5 billion in securities that the city’s five pension funds currently hold in nearly 200 fossil fuel companies. Pending a vote by pension fund trustees, New York would join a growing list of cities, including Washington D.C. and San Francisco, working to “decarbonize” their investment portfolios. Last month, Governor Andrew Cuomo also called on the state to divest its pension fund from fossil fuels. (Notably, Stringer, who’d previously opposed divestment, announced the city’s intention to explore the idea within an hour of Cuomo’s statement.) According to Bill McKibben, co-founder of 350.org, which has led the divestment charge, the growing movement has already stripped more than $6 trillion in managed assets from fossil fuel stocks.

But while New York is far from alone in its shift toward a clean energy portfolio, the mayor faces a less certain path in his stated plan to “sue Big Oil” for their contributions to global warming. According to the suit, the five largest oil-and-gas companies are responsible for “downplaying the risks of climate change,” while doing “nearly all they could to create this existential threat.”

As such, the city asserts that BP, Chevron, ConocoPhillips, Exxon Mobil, and Royal Dutch Shell should put some of their profits toward the estimated $65 billion in damages sustained during Hurricane Sandy, and the ongoing resiliency efforts aimed at curbing the catastrophic storm surges still to come. A nearly identical suit was filed last year in Oakland and San Francisco, using the same attorney currently working with New York City.

“It’s a compelling narrative, but no suit has succeeded on the merits as of yet,” Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, tells the Voice. “There are significant legal obstacles that plaintiffs will have to get past.” Those obstacles include the issue of proving causation and the question of whether federal statutes preempt lawsuits by states or municipalities.

Despite the many challenges, Burger says that “the strategy of bringing suits against fossil fuel companies for climate change impacts has been percolating for a long time.” That approach, which environmental lawyers are considering in the wake of Hurricane Harvey, makes use of an emerging scientific tool known as “event attribution” to determine the role of climate change on specific extreme weather events. Using the tool following deadly flooding in Louisiana in 2016, for example, researchers with the National Oceanic and Atmospheric Administration found that global warming had increased the chances of torrential rain by at least 40 percent.

In the coming years, litigators expect that the increasing precision of science could leave all sorts of actors on the hook for the high cost of extreme weather events. “Certainly,” Burger notes, “there is a much broader range of potential defendants” — including utilities and power plant owners, automobile manufacturers, and even neglectful government bodies — “that could and perhaps should be brought into court in a case like this.”

ExxonMobil responded to the suit in a statement supplied to the Voice: “ExxonMobil welcomes any well-meaning and good faith attempt to address the risks of climate change. Reducing greenhouse gas emissions is a global issue and requires global participation and actions. Lawsuits of this kind — filed by trial attorneys against an industry that provides products we all rely upon to power the economy and enable our domestic life — simply do not do that.

In other climate change news, the president recently unveiled a plan to greatly expand offshore drilling throughout the country, including in protected areas of the Arctic and the Atlantic, and a coalition of academics and environmental groups released a new report today on the Trump administration’s ongoing efforts to eliminate or replace references to climate change on federal government websites. In November, two Pennsylvania children filed a lawsuit against the Trump administration claiming that his environmental policies increased the “damages, death and destruction” of climate change. They surely won’t be the last.

NOTE: An earlier version of this article used an outdated figure for the scale of diverstment from fossil fuel stocks. The current number, according to 350.org, is more than $6 trillion, not $3.4 billion.

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