You can’t sue your way to a solution for global warming. So says the judge.
On Thursday, Judge John Keenan of New York’s Southern District dismissed the City of New York’s lawsuit against the international oil and gas companies BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell. Facing billions of dollars in climate change-related damage in the coming years, New York was hoping to extract some money from the transnational companies that extract the oil that people burn for energy—raising the planet’s temperature, exacerbating storms, melting polar ice and elevating sea levels, worsening wildfires, extending droughts, and allowing diseases to spread farther and faster.
Cities around the country have been filing lawsuits, hoping to get money from oil companies to pay for things like seawalls and infrastructure improvements—part of a strategy that’s been developing for decades. Oil companies have continued to market and lobby for lighter regulation on a product that made life harder on the only planet anyone knows about with life on it, while the US government moved slowly, if at all, toward remaking the country’s energy production and carbon emissions. If regulation and the law won't help, the theory goes, you turn to the courts.
Indeed. And beyond that, two previous cases offered precedents unfavorable to the plaintiffs. The cities argued that global warming was damaging them, specifically and locally (and in fact in California they tried to file in state court but got bumped to federal). But the courts disagreed, framing carbon emissions as a "transboundary" global issue, of international scope. And American Electric Power v. Connecticut (usually referred to as “AEP”) and Native Village of Kivalina v. ExxonMobil both found that the Clean Air Act “displaced” federal common law when it comes to emissions.
Lawyers hoped that things had changed since then. New attribution science helped put blame more squarely on specific emitters, cities were seeing new costs due to global warming, and the legal theory had evolved away from suing over emissions to suing for sales and marketing while knowing about potential climate damages—a template taken from lawsuits against tobacco and lead paint companies.
That doesn’t mean cities won’t keep going. They may well appeal the dismissals in New York and California. Other cases continue in Washington state and Colorado. And on Friday, the city of Baltimore filed suit against 26 oil and gas companies in Maryland state court.
That battle was always uphill. Now the grade’s even steeper. Oil companies don't deny global warming is a problem, but so far they don't have to pay to fix it. It's doable, but by one estimate it'll cost $53 trillion. And the bill is coming due.