Editor’s note: This story is part of Governing’s ongoing Q&A series “In the Weeds.” The series features experts whose knowledge can provide new insights and solutions for state and local government officials across the country. Have an expert you think should be featured? Email Web Editor Natalie Delgadillo at ndelgadillo@governing.com.
- Extreme climate events are bringing significant damage and costs to communities.
- A growing number of jurisdictions are filing lawsuits against oil companies, alleging that emissions from their products have caused these events.
- An attorney representing one of these plaintiffs spoke with Governing about the rights of governments to initiate such suits and what it might take for them to prevail.
Nearly 30 lawsuits from state, local and tribal governments have been filed against companies that produce and distribute fossil fuel products (some suits represent complaints from multiple plaintiffs). The legal complaints arising from their allegations range from public nuisance and negligence to failure to warn, design defect and trespass.
Attorney Jeffrey B. Simon is co-lead counsel for one of these cases, representing Multnomah County, Ore., in a case against ExxonMobil, Shell, Chevron, BP, ConocoPhillips, as well as industry trade groups and consultants. The county is seeking redress for damages it suffered from a heat dome that developed over the Pacific Northwest in June 2021, when temperatures rose as high as 116 degrees over a period of several days — 40 degrees above the average for the county. High heat killed at least 69 people, county officials say, and caused extensive property damage.
The plaintiffs believe they have evidence that this could only have occurred as a consequence of warming precipitated by fossil fuel emissions. Simon, who has had success in litigation against companies that manufacture and distribute opioid painkillers, believes the evidence is strong enough to stand the test of a jury trial.
Simon’s practice has evolved over the years to focus on representing governmental entities in cases where widespread harm has been caused by what they allege to be significant corporate misconduct. He’s written a book about their constitutional right to initiate such civil actions, Last Rights: The Fight to Save the 7th Amendment, a right that he considers to be in jeopardy.
In a conversation with Governing, Simon talks about the legal foundation for cases around extreme climate events and what might be required for them to succeed.
What are the precedents for government lawsuits against fossil fuel companies?
There is a long history in our civil jurisprudence of communities trying to hold industries and companies within them financially accountable for harm done to them, their environment and their welfare from alleged disinformation.
This starts with tobacco litigation, right through to opioid litigation. The through line between those cases and this case is the use of public nuisance, a long-standing cause of action where governmental entities can bring claims for public harm on behalf of the public. Climate cases generally arise out of that line of jurisprudence.
Have you been involved in cases similar to the one in Multnomah County?
My partners and associates in our firm, along with our co-counsel, have represented political subdivisions, principally counties, in opioid litigation for many years. These are cases against prescription opioid manufacturers, wholesale distributors and large retail pharmacies for what we allege to be their misconduct in glutting communities with large numbers and high doses of prescription opioids well beyond any therapeutic benefit, which resulted in the modern opioid epidemic.
It seems straightforward to connect the dots between a painkiller pill and harm to a person. Is the science strong enough to connect emissions, warming and community impacts in court?
I certainly would never underestimate the wealth, power and other resources of the biggest oil producers in the world, nor the talent and resources of the lawyers they hire to defend them in claims like this.
Having said that, the science that links fossil fuel carbon pollution into the atmosphere and the extreme heat event that struck Multnomah County in the summer of 2021 and caused so much harm, both in terms of life and treasure, is very strong. It’s very well documented in peer-reviewed, published scientific literature how extreme and anomalous that heat event was — hotter than it’s ever been in that part of the world in human history.
There’s a study that concluded this would have been virtually impossible in the absence of carbon pollution from fossil fuel burning. Another one said that, compared…
Read More: Could Suing Big Oil Help Governments Recover Damages from Extreme Climate