Thursday, July 26, 2018

Does it make sense for Baltimore to sue Big Oil?

Baltimore surely has a lot to worry about. Is it a good use of its resources to go after "big oil"? The city not always known for bold action did just that this month: A suit was filed by the Mayor and City Council versus Exxon, Shell, Chevron, BP, Citgo and 21 other oil companies.

Even though this wasn't the first city suit against oil companies, it still caught the attention of national media and immediately provoked all kinds of snide responses.
Oil in Curtis Bay, Baltimore: Environmental burden and rising waters
Sadly, Mayor Pugh is doing the same thing previous Baltimore Mayors have done. Ignore the need for real reform in the city.And instead, just try gimmicks to raise money ("petefrombaltimore" on CityLab)
But those cheap shots look even cheaper if one considers the history of similar lawsuits, whether one thinks of tobacco, lead paint or asbestos. Especially the asbestos suits are strongly tied to Baltimore and Orioles owner Peter Angelos, whose firm still has 17,000 individual asbestos suits pending in Baltimore's courts. Tobacco, lead and asbestos were almost as common as petrol, but they have clearly lost whatever luster they had by now. Lawsuits played a big role in that.
"For 50 years, these companies have known their products would cause rising seas and the other climate change-related problems facing Baltimore today," They could have warned us. They could have taken steps to minimize or avoid the damage. In fact, they had a responsibility to do both, but they didn't, and that's why we are taking them to court...We are asserting our claims in state laws, and we will be making vigorous claims, meritorious claims, in state court,” he said. “We intend to prosecute this case through to the end.”  Andre Davis, Baltimore solicitor
People old enough to remember will recall that in each of these cases lawsuits were initially ridiculed with the same arguments which are used for ridiculing suing Big Oil over climate change. Especially the tabacco suits were met with denial of damages and later with the argument that smokers should have known that they took a health risk. Commentators on the Baltimore Big Oil suit are eagerly pointing out that the City still fuels its trucks and boats with Diesel and that the Mayor has a gas powered car. But this misses the point in a similar way it did with big tabacco.
Oil has many connections to modern life
"The people of Baltimore deserve their day in court," Richard Wiles, Executive Director Center for Climate Change, DC
The point is that those large corporations, which for decades made gigantic profits off their damaging product, did everything in their power to make people addicted to their product. In the case of tobacco the corporations went to great length making nicotine addiction stick far beyond the point where one can talk any longer about the consumers' responsibility for their own body. Ultimately, the courts found tobacco guilty. (United States v. Philip Morris). A parallel discovery is currently emerging about the role of pharmaceutical companies in declaring opioids harmless.

In the case of oil, discovery is not yet as far advanced, but there is already evidence that oil companies launched targeted disinformation campaigns about climate change at a time when they themselves knew better.
For decades their own scientists quietly published peer-reviewed research concluding that humans are causing global warming. That was the face we saw from Chevron’s lawyer. But at the same time, oil companies were funding contrarian scientists and think tanks to spread denial and doubt about that same science. (Guardian, 3/23/2018) 
In a court case between Chevron and the two coastal cities San Francisco and Oakland Chevron's lawyer accepted climate change:
"From Chevron’s perspective, there is no debate about the science of climate change, [...] Chevron accepts what this scientific body—scientists and others—what the IPCC has reached consensus on." Theodore Boutrous, Chevron lawyer.
Illustration JohnCook ScepticalScience
San Francisco and Oakland's case against big Oil was dismissed on June 26. US District Court because Judge  William Alsup got cold feet, my decidedly non-legal term for this.
San Francisco and Oakland’s lawsuit is effectively asking the court to “conduct and control energy policy on foreign soil.” If any branch of government is going to do something as big as shutting down global oil production, Alsup reasons, it needs to be done by elected representatives, not one judge and jury making a decision for the entire world. (
Baltimore's suit was filed in the State Circuit Court in Baltimore City. After lengthy elaborations about climate science, the economy and geography of Baltimore including a crudely colored map showing areas of flooding through sea-level rise the 137 page claim alleges that defendants created a "nuisance", "interfered with public rights", "failed to warn", provided a "defective" product ("negligent design defect"), "trespasses" and violated the Maryland Consumer Protection Act. As such the Mayor and City Council are seeking "compensatory damages", "equitable relief", "abatement", "civil penalties", "attorney fees", "punitive damages", "and other relief as the court sees fit". The City solicitor requests are jury trial. In spite of some customization for Maryland and Baltimore, the suit is largely a carbon copy of similar suits filed by 13 other cities.
Rising sea-level projection

When federal judge Keenan ruled in New York's case against oil companies in favor of the defendant, he wrote:
"Climate change is a fact of life, as is not contested by Defendants. But the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government," ..."“The immense and complicated problem of global warming requires a comprehensive solution that weighs the global benefits of fossil fuel use with the gravity of the impending harms. To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government. Accordingly, the court will exercise appropriate caution and decline to recognize such a cause of action.” (John Keenan)
 Naturally, the New York decision elicited different responses on both sides of the issue. For the Union of concerned scientists their president Ken Kimmel commented:
 “The fossil fuel company defendants claimed in court—and the judge apparently agreed—that it is entirely up to Congress and the president to address climate change, but these same defendants and their trade groups have fought successfully against even modest laws and regulations to cut the carbon pollution from burning fossil fuels that causes global warming. My grandmother would have called this ‘chutzpah.’” (Ken Kimmel)
Map in the complaint
Forbes contributor David Blackmon took a dim view of Baltimore's action one day after New York's case was tossed. would have thought that the City of Baltimore might have chosen to take a step back and possibly try a new angle after the setbacks dealt to their fellow cities.  Instead, they chose to plow ahead and deploy essentially the same strategy while expecting a different result. We all know what that is the definition of. (Forbes)
It remains to be seen whether the narrower focus of the claim on Maryland state laws will make a difference. When asked to comment on the Baltimore case, State Senator Bill Ferguson cautioned from his vacation spot that he doesn't know much about the case. He ventured to say that it could "come down to a fight about proximate cause". His "gut sense" is that "the real fight will be whether the City can establish just enough proximate cause to an identifiable City harm as to get past an initial motion to dismiss. If the City can get into discovery, then it's an interesting ballgame," Ferguson states. He added that he thinks that City solicitor wouldn't have entered such a high profile case " unless he thought there was a real opportunity here".
Sea-level rise has consequences: This could be the new normal

Tobacco is an example where "regulation by litigation" was successful. Similar suits against the gun industry have failed when Congress gave the industry blanket immunity and didn't go anywhere.

One can expect that cities will try a little while longer to seek compensation in the courts until they find a judge who is willing to take the case. Cities, indeed, bear a large portion of the cost of new the weather patterns with their high winds, extreme rainfalls and rising sea-levels.

Klaus Philipsen, FAIA

Mayor Pugh's Press Release

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