The Blame Game: Climate Litigation Edition

The latest edition of the Blame Game is on a timely and crucial topic. According to the “United Nations Global Climate Litigation Report: 2023 Status Review,” people are increasingly turning to the courts to combat the climate crisis. Pursuant to the United Nations’ data, as of December 2022, there have been 2,180 climate-related cases filed in 65 jurisdictions, including international and regional courts, tribunals, quasi-judicial settings, or other adjudicatory systems. “This represents a steady increase from the 884 cases in 2017, and 1550 cases in 2020,” according to the United Nations report. In addition, according to the United Nations, children and youth, women’s groups, local communities, and Indigenous people are taking a prominent role in pursuing these cases and using the legal system to drive climate action. 

Climate change litigation includes a wide variety of different types of losses. These lawsuits can involve constitutional law relating to alleged breach of constitutional rights; administrative law, concerning decision-making by administrative bodies regarding land use and related issues that impact climate issues; litigation by or against corporations or other organizations for tort claims relating to climate issues; consumer protection cases relating to alleged misrepresentation regarding climate impact; and human rights-related litigation in which claims are made that a failure to act on climate change fails to protect basic human rights. In the years to come, we will likely seeadditional ways in which climate-related litigation is pursued. 

PLAYING THE BLAME GAME 

If you have not played the Blame Game before, here is how it works. Below are facts of three different cases involving climate litigation. The facts regarding liability and damages are summarized, and names are removed to protect identities. Based on the facts, we will be asking you, the reader, to estimate the outcome of the litigation. Will the trier of fact find liability? Is there evidence of comparative fault? What is the exposure for damages? How much do we expect the trier of fact to award given the facts? As we know, outcomes can vary depending upon the nature of the claims, the jurisdiction, the facts in play, and multiple other factors. As a result, it is often difficult to accurately play the Blame Game, but the outcomes are always instructive.  

CASE ONE: LAWSUIT BY 16 YOUTHS VS. STATE CLAIMING VIOLATION OF CONSTITUTIONAL RIGHTS BASED ON LEGISLATION OUTLAWING CONSIDERATION OF CLIMATE CHANGE FOR PROPOSED FOSSIL-FUEL PROJECTS.  

THE LAWSUIT. Our first case comes from a land-locked western state that boasts it is the fourth largest state by area, but one of the least populated states in the country. The case was filed three years ago when a group of 16 youth climate activists sued in state court, challenging a state law that limited climate change considerations during environmental review of proposed fossil fuel projects. At the time, the state environmental policy act stated that environmental impacts, whether actual or potential, which were regional, national, or global in nature, could not be considered in government review of new projects. This effectively precluded assessing the impact on climate change of proposed fossil fuel and other projects. The lawsuit contended that in 2023, the state legislature made this requirement even more explicit by holding that climate change impacts could not be considered at all in assessing future projects.  

THE ALLEGATIONS. The activist plaintiffs alleged that both versions of the law violated the state constitution, which includes a provision stating, “The state and each person shall maintain and improve a clean and healthful environment…for present and future generations.”  The activists also argued that the state’s fossil fuel-based energy system contributed to climate change in violation of their constitutional rights. The state disagreed, arguing that the state’s impact on global climate change was essentially nonexistent.  

THE TRIAL. The case went to trial in June 2023—the first youth-brought climate lawsuit to go to trial in the United States. The bench trial (no jury) lasted eight days. The plaintiffs asked for a declaration of law concerning their constitutional rights. The plaintiffs in the case ranged from two- to 18-years-old when the case started and were between five- and 22-years-old at the time of the verdict. The plaintiffs presented testimony from 24 witnesses and the defense presented testimony from three witnesses. Interestingly, the court admitted 168 of plaintiffs’ exhibits and just four defense exhibits. Plaintiffs produced expert testimony from university professors in the state who explained how fossil fuels damage the environment and contribute to climate change.  

Evidence was presented that there is overwhelming scientific consensus the Earth is warming as a direct result of human emissions, primarily from the burning of fossil fuels. Evidence was also presented that the state is heating faster than the global average because its higher latitude heats more quickly, and the rate of warming is increasing in the state. The state offered evidence that its contribution to global greenhouse gas emissions is small, and that if the law in question was overturned, there would be no meaningful impact or appreciable effect on the climate. 

WHAT WAS THE OUTCOME? How do you think the court ruled? For the youth plaintiffs or the state? Since there is no specific claim of injury and the suit was a declaratory relief action only, monetary damages were limited to attorney fees and costs exposure. Of course, a negative ruling could have an impact on a range of state programs. 

THE RESULT. The judgment was for the youth plaintiffs. In a landmark ruling, the judge ruled in favor of the youths, finding that children are uniquely vulnerable to the consequences of climate change, and that the impact from climate change from a physical and psychological standpoint are both acute and chronic—including heat waves, drought, wildfires, air pollution, extreme weather events, the loss of wildlife, watching glaciers melt, and the loss of cultural practices and traditions. The judge gave examples from the youth plaintiffs citing their fear and despair about the climate. The court also found that climate change has a detrimental impact on mental health. The court found that the state’s natural environment has already been adversely impacted by climate change and cited multiple impacts. The court also found that the individual plaintiffs had already been harmed by climate change and cited examples that included the experiences of children with extreme heat and wildfires. Finally, the court found that the actions of the state do impact climate change and listed a litany of consequences, including, for example, that total carbon dioxide emissions due to the state’s fossil fuel-based economy is about 166,000,000 tons of carbon dioxide, which is considered a conservative estimate. 

Ultimately, the court concluded that the state laws prohibiting consideration of climate change are unconstitutional because they violated the plaintiffs’ rights to a clean and healthy environment, guaranteed under the state constitution. The court also awarded reasonable attorney fees to the plaintiffs. The state recently appealed the ruling to the state Supreme Court. A ruling is not expected until sometime in 2024, and regardless of outcome, a further appeal to the United States Supreme Court should be expected. 

CASE TWO: CLASS ACTION LAWSUIT BY 17 HOMEOWNERS AGAINST UTILITY COMPANY RELATING TO WILDFIRE DAMAGES. 

THE LAWSUIT. Our next case comes from the state of Oregon. In Multnomah County Circuit Court, in Portland, 17 homeowners/class representatives filed a lawsuit for property damage and emotional distress related to devastating wildfires in that state that occurred in 2020. The plaintiffs included a class of approximately 5,000 individuals harmed by the fires. The defendant was a utility company that allegedly failed to shut off power to 600,000 customers during a windstorm over Labor Day weekend, despite warnings from top fire officials. To complicate matters, the plaintiffs alleged that, after the fire, an internal investigation was initiated by the utility company without communicating the investigation to the workers in the field. As a result, workers repaired or replaced damaged equipment without documenting or preserving evidence of how broken poles or power lines may have contributed to the fire. The plaintiffs also alleged punitive damages were warranted because of indifference to the safety of others and to deter such conduct in the future.  

THE ALLEGATIONS. The fires in 2020 killed nine people, burned more than 1,875 square miles, and destroyed more than 5,000 homes and structures. The defendant utility company disputed the allegation that the utility lines caused three of the four fires and disputed most of the resulting damage. According to the defense, the utility was responsible for only one fire with minimal damage. The defense also argued that the utility had been on alert and acted similarly to most other utilities at the time that did not proactively cut power. The power company argued its precautions were reasonable in order to provide safe and fairly priced power. Interestingly, counsel for the utility argued that plaintiffs were trying to blame the utility based on hindsight, without the context of climate change and the role that forest management has in causing and preventing wildfires (suggesting comparative fault of others). Moreover, the utility argued that no utility in Oregon had ever initiated a public safety power shut-off before the subject fires. Shutting off power was considered a measure of last resort. 

WHAT WAS THE OUTCOME? What do you think about the odds of success for the defense, and the exposure? Considering the case was a class action suit with 5,000 members seeking compensation for damages to about 5,000 structures, the exposure was high. 

THE RESULT. The case was decided by a jury that found the utility was responsible for the damages incurred by the class. The jury also found gross negligence and reckless conduct, which triggered punitive damages. The award included $4 millionof economic and property damages, $60 million of non-economic damages (a ratio of 1:15 of economic vs. non-economic damages), and $18 million in punitive damages. The jury awarded between $3 million and $5.5 million to each named plaintiff for compensation totaling more than $70 million. Remaining class members will be able to prove up their damages in a later phase of the case. In a separate phase, the jury awarded another $87 million in punitive damages. In October 2023, the utility company filed a motion to reduce the punitive damages award. Further trials are scheduled in companion suits, and the impact on the utility’s financial situation is enormous. 

CASE THREE: HUSBAND AND WIFE VS. CHEMICAL COMPANY IN OHIO FOR CONTAMINATED DRINKING WATER CAUSING TESTICULAR CANCER. 

THE LAWSUIT. The last case for this version of the Blame Game is from Ohio, and involves the claims of an Ohio husband and wife. The husband, Mr. Abbott, lost his testicles to cancer. The couple alleged that drinking water contaminated by the defendant, a worldwide manufacturer of industrial chemicals and related products, caused the cancer. The particular chemical at issue was perfluorooctanoic acid, known as PFOA or C8. The man-made chemical raises health concerns due to the fact it remains in the environment and the human body for long periods of time, which is why PFOA is known as a “forever chemical.”  

THE ALLEGATIONS. Plaintiffs alleged that they and approximately 80,000 residents were exposed to the chemical due to a company discharge of the substance into the Ohio River and the air. They alleged that their exposure to the chemical caused a range of diseases. The chemical company was estopped from disputing several elements of the claim, including duty, breach, and foreseeability based on three bellwether (representative) cases that had been tried and that had resulted in plaintiff verdicts. The only elements that needed to be resolved (over the objection of the defense) were specific causation and damages.  

WHAT WAS THE OUTCOME? There is not a lot of information available concerning Mr. Abbott. We don’t know his age or his occupation. We know he was married, and he lost his testicles. This is an injury that is hard to imagine, and that has the potential for a runaway verdict. Setting aside the terrible injury, was there liability? Can you estimate the damages exposure? 

THE RESULT. The jury found for the Abbotts and awarded them roughly $40 million. The matter was appealed to the Sixth Circuit Court of Appeals, which affirmed the jury verdict. The chemical company then appealed to the United States Supreme Court, which denied a petition for a writ of certiorari; Justice Clarence Thomas dissented, and Justice Samuel Alito took no part in the decision. 

There is a common theme in the climate change cases we’ve reviewed. Because the alleged damages are significant, the exposure is tremendous, whether the issue is a declaratory relief action, property damages, or personal injuries. All of the cases reviewed here resulted in verdicts for the plaintiffs. Certainly, there are lots of outcomes where climate litigation is not successful for the plaintiff, and obviously there is just as much to learn from successful defense verdicts as there is from these landmark outcomes (the youth plaintiff case) and enormous plaintiff verdicts (the fire litigation and the testicular cancer case). One thing is certain: The trends suggest climate litigation will continue to increase at dramatic rates, not only in this country, but around the world.