California Sues Five Big Oil/Gas Companies for Decades of Climate Change Damage

On Sept.15, the State of California sued five of the largest fossil-fuel companies in the world, along with the American Petroleum Institute (API) for allegedly engaging in a decades-long campaign of deception and creating statewide climate change-related harms in California.

The same five companies and API were sued by the State of New Jersey last year on similar grounds. Eight California municipalities filed some of the nation’s first-ever climate lawsuits against fossil fuel companies in 2017 and 2018 and “Around 20 cases filed by US cities and states against the Carbon Majors are now likely to go to trial,” according to a report from the Grantham Research Institute released in June. This includes six other states. But California is far and away the largest government entity to pursue such litigation, and it is the first major fossil-fuel-producing state to do so.

“For more than 50 years, Big il has been lying to us — covering up the fact that they’ve long known how dangerous the fossil fuels they produce are for our planet,” said Gov. Gavin Newsom in a press release. “California taxpayers shouldn’t have to foot the bill for billions of dollars in damages — wildfires wiping out entire communities, toxic smoke clogging our air, deadly heat waves, record-breaking droughts parching our wells. With this lawsuit, California is taking action to hold big polluters accountable and deliver the justice our people deserve.”

As the suit alleges, “The State has spent tens of billions of dollars to adapt to climate change and address the damages climate change has caused so far, and the State will need to spend multiples of that figure in the years to come.”

The complaint includes five causes of action: public nuisance, damage to natural resources, false advertising, misleading environmental marketing, unlawful, unfair, and fraudulent business practices, and product liability (strict and negligent).

“With our lawsuit, California becomes the largest geographic area and the largest economy to take these giant oil companies to court,” said Attorney General Rob Bonta. “From extreme heat to drought and water shortages, the climate crisis they have caused is undeniable. It is time they pay to abate the harm they have caused. We will meet the moment and fight tirelessly on behalf of all Californians, in particular those who live in environmental justice communities.”

“We support this lawsuit and other efforts state officials can undertake to compensate the state and its residents for the apparent damage done by Big Oil to us all,” said Peter Warren, of the San Pedro & Peninsula Homeowners Coalition. “For too long, these corporations apparently have used the promise of jobs and profits in a Faustian bargain with the people of California to boost Big Oil and its profits. This bargain may have been done through fraudulent business practices and marketing, as well as other legally dubious acts.”

“Climate policy is for Congress to debate and decide, not the court system,” said Ryan Meyers, general counsel of the American Petroleum Institute in a statement. It’s not an argument that’s worked particularly well for big tobacco over the past 30 years.

“California’s decision to take Big Oil companies to court is a watershed moment in the rapidly expanding legal fight to hold major polluters accountable for decades of climate lies,” said Richard Wiles, president of the Center for Climate Integrity. “As similar cases proceed toward trial, California’s move is an unmistakable sign that the wave of climate lawsuits against Big Oil will keep growing and that these polluters’ days of escaping accountability for their lies are numbered. Just like tobacco and opioid companies, the oil and gas industry will have to face the evidence of its deception in court.”

“Holding Big Oil accountable for their decades-long deception is necessary and crucial to protect California communities from the effects of the climate crisis,” said Sierra Club California Director Brandon Dawson. “By bringing this lawsuit,  Governor Newsom and Attorney General Bonta are cementing California as a leader in the fight against climate change and Sierra Club California applauds these efforts. We look forward to working with the Governor to ensure that key climate bills that were passed this legislative session, specifically Senate Bills 253 and 261 [mandating climate-related disclosure requirements], and Assembly Bill 1167 [the “Orphan Well Prevention Act” ], are signed into law and build on the momentum of this moment,” Dawson said. All three bills have just been passed and are awaiting the governor’s signature.

As described in the press release, the 135-page filing includes the following causes of action:

• Public nuisance: Under California law, a “nuisance” is “anything which is injurious to health,” and a “public nuisance” is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons.” The complaint alleges that all the defendants, by their deceptions, acts, and omissions, have created, contributed to, and assisted in creating harmful climate-related conditions throughout California.
• Damage to natural resources: California law authorizes the Attorney General to take legal action to protect the state’s natural resources “from pollution, impairment, or destruction.” The complaint alleges that the misconduct by all the defendants has served to exacerbate the climate crisis in California, and has led to the pollution, impairment, and destruction of California’s natural resources.
• False advertising: California law prohibits untrue and misleading advertising concerning the disposition of property or services. The complaint alleges that all defendants, with the intent to induce members of the public to purchase and utilize fossil fuel products, made misleading statements concerning fossil fuels.
• Misleading environmental marketing: Under California law, “[i]t is unlawful for a person to make an untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied.” The complaint alleges that all defendants have made environmental marketing claims that are untruthful, deceptive, and/or misleading, whether explicitly or implicitly.
• Unlawful, unfair, and fraudulent business practices: California law prohibits unlawful, unfair, or fraudulent business acts or practices. The complaint alleges that all defendants committed unlawful acts by, among other things, deceiving the public about climate change and affirmatively promoting the use of fossil fuels while knowing that fossil fuels would lead to devastating consequences to the climate, including in California.
• Products liability (strict and negligent): The complaint alleges that, as a result of the defendants’ failure to warn about the climate-related harms related to the use of their products, California has sustained a plethora of injuries and damages, including to state property, state infrastructure, and its natural resources.

The public nuisance cause of action concludes as follows:
“The State requests that this Court order Defendants, and each of them jointly and severally, to abate the nuisance, including by making payments into an abatement fund to address the public nuisance.”

There is precedent for such a fund. In 2019, after decades of litigation, makers of lead paint agreed to settle with the County Counsels and City Attorneys of ten California jurisdictions for $305 million, which was used to create an abatement fund. But API’s general counsel Meyers remains in denial.

“This ongoing, coordinated campaign to wage meritless, politicized lawsuits against a foundational American industry and its workers is nothing more than a distraction from important national conversations and an enormous waste of California taxpayer resources,” Meyers said in his statement.

But that’s little more than whistling past the graveyard in light of how similar such climate litigation has exploded in recent years, how it’s beginning to pay off, and how similar the progression is to earlier litigation against serious corporate harms.

The Grantham Research Institute report referred to above is based on the Sabin Center’s climate change litigation databases. It reports that 2,341 such cases have been captured in the databases, “190 of which were filed in the last 12 months,” noting that “The growth rate in cases appears to be slowing but diversity in cases is still expanding,” and that “More than 50% of climate cases have direct judicial outcomes that can be understood as favourable to climate action,” in addition to which “Climate cases continue to have significant indirect impacts on climate change decision-making beyond the courtroom, too.”

In short, however much API might wish for litigation to stop, there is no chance that it will.