John Schwartz reported last week at The New York Times Online that, “Until recently, communities suing fossil fuel companies over the costs of climate change have been located on the coasts: cities and counties in California, and New York City. But now, the litigation has jumped inland.
“Boulder and San Miguel Counties in Colorado, along with the city of Boulder, filed a lawsuit on Tuesday against two oil companies, Exxon Mobil and Suncor Energy, the Canadian giant. The suit, filed in state court, argues that fossil fuels sold by the companies contribute to climate change, which in turn has exacerbated wildfires, droughts, severe storms and other symptoms of a warming planet that have far-ranging effects on agriculture and tourism.
“Dealing with these climate-related issues, the suit says, places a burden on local governments. ‘Our communities and our taxpayers should not shoulder the cost of climate change adaptation alone,’ said Suzanne Jones, Boulder’s mayor. ‘These oil companies need to pay their fair share.'”
The Times article noted that, “The earlier lawsuits have largely focused on the obvious link between climate change, namely rising sea levels and damage to infrastructure. This new climate suit, far from the coasts, suggests that more communities around the country might take on energy companies in court. Each case could mean billions of dollars in damages.”
Mr. Schwartz explained, “The state-level climate lawsuits focus on the area of nuisance under common law, which allows courts to hold parties responsible for actions that interfere with the use of property.
“Attempts at the federal-court level to use nuisance in climate change litigation, in cases such as American Electric Power v. Connecticut, have been unsuccessful. In a unanimous 2011 decision, the Supreme Court said that the Clean Air Act displaced the federal common law of nuisance, leaving enforcement and regulation to the Environmental Protection Agency.
“The new wave of cases relies on the nuisance doctrine at the state level, working from the theory that state common law has not been similarly displaced. The companies, understandably, have tried to get the cases moved to federal court, with mixed success.”
