Change is expensive. Whether you’re settling into a new apartment or buying warm clothes for the winter, it takes effort to adapt to changing circumstances. Global changes, then, come with a hefty price tag. It is common knowledge that the global climate has changed at an abnormal rate over the past century. Though heated debate continues concerning how much of that change should be attributed to human action, world governments have repeatedly acknowledged that something should be done.
While we consider what should be done about climate change, an equally pressing question presents itself: who foots the bill?
While movements and businesses take independent action to avert climate change, the task of proactively preparing for those changes’ ill effects has largely fallen upon governments. For example, the city of San Francisco plans to construct a sea wall as a cost-efficient way to combat rising oceans. The city projects that the wall will cost upwards of five billion dollars. In the city’s view, that cost should not fall solely on the tax payer. In September, the San Francisco sued major oil companies, claiming at least part of the cost of the sea wall as damages arising from the companies’ promotion of fossil fuels. The city brought these claims under a legal theory of public nuisance.
Public nuisance claims require government plaintiffs to prove continued, unreasonable action on the part of the defendant that eventually caused harm to the public and required government money to address. In the context of climate change, plaintiffs most often struggle to prove a that a defendant’s actions caused the localized harm that they claim. In an issue as broad and multi-faceted as global climate change, even large players like major oil companies can fly under the causal radar. First, plaintiffs must estimate the impact of fossil fuel consumption of climate change. The burning of fossil fuels constitutes a major factor contributing to climate change, but it is not alone. Just as greenhouse gas emissions impact climate change by trapping heat in the earth’s atmosphere, so too do changes in the sun’s energy and earth’s reflectivity. Second, plaintiffs would need to prove that an oil company’s actions significantly contributed to the consumption of enough fossil fuels to meaningfully contribute to their local harm. Though difficult, public nuisance claims have a history of success in anti-tobacco suits, and the claims have found increasing success in recent years.
However, attempts by the federal government address issues through legislation “displace” the common law by preventing lawsuits from addressing the same issue. This policy prevents the public from double-dipping into a company’s coffers when that company contributes to some public harm. For example, in Kivalina v. Exxonmobil Corp., a north Alaskan village began to “fall into the ocean” as a result of climate change. The village brought a public nuisance claim against big oil companies. In 2012, however, the Ninth Circuit dismissed the suit on the grounds that the federal Clean Air Act prohibited courts from addressing the issue. The Clean Air Act enacts policies which restrict greenhouse gas emissions and directly cuts into oil companies’ profits. When state and local governments bring public nuisance claims against oil companies, courts have been unwilling to demand that oil companies pay twice for the same harm.
A better approach, then, might be to sue the federal government for stricter climate change regulation. In 2015, a group of Californian youths sued the federal government for the future harms of climate change under a theory of infringement of the constitutional right to life, liberty, and the pursuit of happiness. To everyone’s surprise, the district court refused to dismiss the case. Fully acknowledging the difficulties in the plaintiffs’ causal inquiry, the court nevertheless found that the plaintiffs had shown enough to pass standing.
If these cases succeed, they could pave a way for the public to influence the allocation of costs stemming from climate change. Even if they fail, the cases will raise awareness and encourage governments to enact stricter climate regulatory policies.