Short Wave - Should Big Oil Pick Up The Climate Change Bill?

Episode Date: February 2, 2022

The Fourth Circuit Court of Appeals is deciding whether a Baltimore case against more than a dozen oil and gas companies will be heard in state or federal court. The city argues the companies are liable for the local costs of climate change. It wants the case heard in state court, which is governed by robust consumer protection laws. But industry lawyers are fighting hard to have it and more than 20 other similar lawsuits nationwide tried in federal court, where the oil and gas industry may be more likely to prevail. NPR climate correspondent Rebecca Hersher, brings an update on the case, which went before the U.S. Supreme court last year. She explains how this pending decision may prove key to determining who pays for climate change.Listen to the full Short Wave episode from last year about this case here: n.pr/3gcJDOkEmail the show at [e-mail]. See pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.NPR Privacy Policy

You're listening to Shortwave from NPR. The judges of the United States Court of Appeals for the Fourth Circuit. Oh, yay, oh, yay, oh, yeah, oh, yeah. Hey, Lauren. Hi, Becky. For the court is now sitting that I save the United States and its honorable court. So, Becky, what court are we visiting? This is the Fourth Circuit Court of Appeals in Virginia.

And this is a case that they heard last week. Good morning, counsel. So the judges were considering a case that we've actually talked about. here onshore wave. And it's a case about climate change and who should pay for the costs of a hotter Earth because it's really expensive to rebuild after a hurricane or a wildfire, for example, or to upgrade infrastructure like roads and sewers to withstand a more extreme climate. All that costs billions of dollars. And the question in this case is, should the taxpayers of cities and states and counties foot that bill or should companies also chip in, particularly,

oil and gas companies. Right. This is an example of something called a climate liability lawsuit. Is this the one that went to the Supreme Court last year? Yes, exactly. And we did a shortwave episode last year all about the case and why it ended up before the U.S. Supreme Court. So what I want to do today is I want to play a part of that episode from one year ago. It's one that I did with former shortwave host Maddie Sofaya. And then I have some exciting updates to share about what's happening now. All right, let's do it. Okay, so without further ado, I guess I should tell listeners who I am. I'm Rebecca Hersher, a climate reporter at NPR. And I'm Lauren Summer, also a climate reporter at NPR. Today on the show, adapting to climate change is really expensive. Should oil and gas companies help foot the bill if they knowingly misled the public about the dangers of burning fossil fuels?

This is Shortwave, the data science podcast from NPR. Okay, Becky. I'm going to hand it off to you and the ghost of Maddie Sophia. And I'll see you on the flip side. Perfect. So first we're going to hear about this climate case that went before the Supreme Court one year ago. And it was brought by the city of Baltimore against some of the biggest oil and gas companies in the world. There are more than 20 lawsuits similar to this one, brought by other cities and states and counties.

But the Baltimore one just happens to be the one that made it to the Supreme Court first. So that's the one we're focusing on it. All right, Ghost of Maddie Sophia, take it away. So what specifically does the Baltimore lawsuit allege? So this lawsuit alleges that a long list of big fossil fuel companies, and that includes ExxonMobil and Shell, BP, Chevron, misled the public about the dangers of burning fossil fuels, and that those companies have to help the city pay for the costs of climate change.

So the lawsuit lays out how global warming is causing, damage in the city and how that's expensive for the city government. Like heat waves, for example, they're expensive or flooding. Like the flooding from climate-driven extreme rain. Yeah, and flooding from sea level rise. So let's start there because that's actually the simpler one. Sea levels on the east coast of the U.S. are rising more quickly than the global average. Streets sometimes flood during high tide. When there's a storm, water ends up in buildings, which is obviously not good. And when you out to the future, the city estimates that the amount of Baltimore's port area that will flood frequently will increase by almost 150% in the next 30 years.

Wow, 150%, Becky. That is intense. That is a lot of flooding. Yeah, it's super serious. And I have to imagine that it's going to be really expensive to retrofit Baltimore to be able to deal with what's coming. Yeah, totally. And, you know, climate change isn't just a future cost, right? cities are already racking up millions of dollars in infrastructure costs. So in 2018, the then city solicitor announced this lawsuit. His name is Andre Davis. These companies must be held accountable. Climate change is a reality.

And what Davis explained was, listen, oil and gas companies have known for decades that burning fossil fuels causes climate change. And they've misled the public about that. That's what the lawsuit argues. These companies hid knowledge of the harms from elected officials, from ordinary citizens. So you can hear, like, the logic behind the case is that the companies profited off of misleading the public about the dangers of burning oil and gas, and now they should help pay for the damage.

And it's similar in some ways that argument to the lawsuits brought against tobacco companies in the 20th century, right? Which also hinged on companies misleading consumers. Although, obviously, there are some notable differences between the role. that cigarettes played in society and the role that fossil fuels play in society. Sure, sure. But that is like a helpful touch point. Okay. So what do the oil and gas companies say about this, Becky? Well, they're fighting the lawsuit. And they have a few different arguments. I interviewed a lawyer who works with the National Association of Manufacturers, which is a trade group that represents manufacturers. And they submitted what's called an amicus brief in support of the oil and gas companies that are being sued. basically like an essay for the Supreme Court justices about why Baltimore is wrong and the oil and gas companies are right.

The lawyer's name is Phil Goldberg. This isn't something that the energy companies created. This is a byproduct of modern society. And this is why he argues the companies aren't responsible. They aren't liable for the damages from climate change. All the companies are doing is engaging in a lawful business endeavor. And what that is is selling us the energy that we have. all need to turn on our lights, drive our cars, heat or cool our homes. Doing that is not a

liability-causing event. So they're basically just saying, like, we're selling stuff that they want, it's legal, capitalism, capitalism. Exactly. That's the argument. Here's the other thing. Goldberg says that dealing with the cost of climate change and transitioning to cleaner fuels, it's something that Congress should be working on, not the courts. And especially not the state courts. You know, the oil and gas industry is fighting really hard to have this case and other cases like it, tried in federal court. And that tiny little narrow question is actually the only question that the Supreme Court is considering this week. So the question is, should the case be tried in federal court like the fossil fuel companies want or in state court like Baltimore's government wants?

Yeah, exactly. I mean, why do we care about that particular answer? I mean, like, to me, I don't know that much about this. whether or not it's a state or federal case seems pretty far removed from all the flooding and the heat waves. Right. Yeah, no, I think that's a really natural reaction. I promise it's all connected. But we don't need to get into the weeds about the legal arguments. Basically, there are a lot of robust state laws about protecting consumers and making sure corporations don't mislead the public about their products. And so Baltimore and other cities and states and counties that have filed lawsuits like this one, they feel that state courts are the right place for these cases. Oil and gas companies point to the fact that greenhouse gas emissions that actually trap heat in the atmosphere are not local phenomena. They cross local and state borders, and that means that cases about climate change responsibility, they should be handled at the national level. So that means federal court.

So what happens if the Supreme Court justices decide in favor of the Baltimore government, if it's a state case? Well, it would pave the way for the Baltimore lawsuit to proceed in Maryland state court. which could mean a trial. And the first step would be that the companies that are being sued, which include ExxonMobil and Shell and BP, would be asked to turn over documents about what they knew about climate change and how they've been doing their business. But it's not just Baltimore, right?

All the other cases like this one could conceivably move ahead if the Supreme Court leaned that way. So there's this law professor at Loyola University in New Orleans who studies these climate lawsuits. Her name is Karen Slockel. These cases have the potential to be quite powerful if they finally see their day in court. And when she says that, she's talking about state court. She thinks that if big oil is forced to disclose everything it knew about the dangers of fossil fuels,

it might change the way some people see those companies. You know, for a lot of people in the U.S., these companies are household names, and there's a lot of implicit trust that comes with that. So anything that undercuts that would be a real change for an industry that's had a lot of power. for a really long time. It's never been held to account in this way in this country. It's largely wielded such tremendous economic and political might that it's never had to face a threat quite like this. Okay, Becky, that's where we left it a year ago. So what happened? Did the Supreme Court decide

that these cases can be heard in state court or federal court? They didn't really decide either way. The scope of the decision was really limited. So basically the justices said, we're just going to give permission for a lower court to decide this question of jurisdiction. Hmm, which must be why we started the episode in a lower court, the Fourth Circuit Court of Appeals in Virginia. Exactly. So the Baltimore case landed in that federal courtroom in Virginia last week. So if you're ready, you may proceed. Thank you, Chief Judge Gregory. Cannon, Shand McGam of Paul Wise for the appellants. May it please the court.

In remanding this case. Lawyers from both sides got to argue their points about why they think state or federal court is the right place for this case. So oil companies are arguing that climate change is a national and international issue, and therefore the case should be heard in federal court. And Baltimore is arguing that's a red herring. This is not about how to tackle climate change. It's about the oil companies allegedly deceiving the public about the harms that come from burning oil and gas. And later this year, the appeals court will decide. And the stakes for this one decision are huge, right?

There are 20-plus climate liability lawsuits still pending all over the country, right? Right, yeah. The appeals court decision could influence other appeals courts around the country, but this decision will have a direct impact on two other climate liability lawsuits filed in Maryland and one in South Carolina. Because those cases fall within the jurisdiction of this particular. court. So whatever these three judges decide in the Baltimore case will also be binding for those other cases within this court's jurisdiction. Okay, got it. So it seems like a long road still to go

before all this is over. But yes, the answer to this really pivotal question about who pays for climate change is on the horizon. Absolutely. And I'll be back over the next months and years potentially to share updates. Thanks, Becky. Thanks. This episode was produced by Eva Tesfi and edited by Stephanie O'Neill. Catherine Seifer, check the facts. The audio engineer was Patrick Murray. I'm Lauren Summer. Thanks for listening to Shortwave, the Daily Science podcast from NPR.