Findings of a Colorado data miner could be pivotal in climate change lawsuits
by Allen Best
A startling fact has emerged from what the New York Times Magazine describes as a basement full of dusty reports in the mountains of Colorado.
There, climate data researcher Rich Heede has concluded that if you include all the carbon extracted and supplied, just 90 companies are responsible for two-thirds of all the greenhouse gases emitted between 1751 and 2016.
“Even more startling,” the story goes on to say, “more than half those emissions have occurred since 1988, the year that the climate scientist James Hansen, then at NASA, appeared before Congress to urge that ‘it is time to stop waffling’ and recognize the clear link between the emission of greenhouse gases and the warming of the planet.”
Heede, who has a non-profit called Climate Accountability Institute, seems to work from a home overlooking Capitol Creek. This is a valley away from Snowmass, perhaps 25 minutes from Aspen. Nearby, in the early 1980s, Amory Lovins and his then-wife, Hunter Lovins, founded his now-famous Rocky Mountain Institute. Heede shows up at some of the same energy and climate conferences I attend. I’ve engaged him in conversation a time or two, even got him to buy a small advertisement in Mountain Town News.
The Times explains that Heede has spent much of the last 16 years searching through archives to find reports about how much fossil-fuel companies extracted during their sometimes long histories. He then “estimates how much fossil fuel was used for a company’s own operations, how much diverted for things like asphalt or petrochemical production, how much volatilized into the atmosphere.” It is, says the NY Times Magazine writer, Brooke Jarvis, tedious work.
But Heede’s work is also perhaps pivotal to a growing body of lawsuits being filed around the world against fossil fuel companies. They include a lawsuit filed last year by Colorado’s San Miguel County and two other local jurisdictions, the municipality of Boulder and Boulder County, linking the profits of Suncor and ExxonMobil with emerging impacts of increased wildfire, extreme weather, and so forth.
That lawsuit on the face of it looks almost frivolous. How can you connect these dots of specific causality when even now the impacts to climate of rising temperatures have barely emerged from the noisy range of natural variability?
The NY Times Magazine piece makes the same point: “The sheer vastness of the climate problem has been a boon to defendants.” One lawyer who has spent his career defending large companies in environmental litigation says he would broaden the case as much as possible. “I would basically create a historical tableau and put civilization on trial.”
Just last year, a federal judge dismissed the claims filed by Oakland and San Francisco against five oil companies. “The dangers raised in the complaints are very real,” Judge William Alsup wrote. “But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide. The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public-nuisance case.”
But for plaintiffs in the new wave of cases—including, presumably, those involving the Colorado jurisdictions—such defenses “represent a fundamental misunderstanding not only of what the lawsuits are claiming but also of what the law is capable of handling.”
Jarvis starts her story in a Peruvian village threatened by disintegrating glaciers. The loss of ice threatens the village in several ways, including the possibility of a calving glacier plunging into a lake above the town, causing flooding. She’s apparently bilingual and it served her well when she was doing her reporting there, connecting well with a villager—a farmer and guide—who is the face for a lawsuit filed against a German fossil fuel company. The lawsuit was not dismissed easily, as in the Oakland and San Francisco cases, but has moved to the evidentiary phrase.
If the Colorado lawsuit gets that far, it will still face a long list of difficult questions, among them those posed by Jarvis in her story:
“Where on the chain of causality—from coal extraction to power generation, for example— does responsibility lie? How do we put a dollar amount on the degree of liability? How do we account for non-climate variables, such as whether a city magnified its exposure to damages from wildfire or rising seas by permitting development in risky places? How should other contributors to climate change, from deforestation to population growth, be considered?”
But at one time lawsuits against tobacco companies looked like long-shots, too. She reports that proponents of lawsuits against fossil-fuel companies have studied the earlier lawsuits carefully. “The tide began to turn against the tobacco industry once subpoenaed documents showed a longstanding conspiracy to cover up the harms of smoking,” she says.
In the case of fossil fuels, what might this look like? After all, we do have evidence of Exxon realizing the risks of fossil fuels decades ago. “Some observers imagine a future in which fossil-fuel companies support carbon regulation because it includes a provision shielding them from a morass of liability.” There are other ideas where all this may go.
If you’ve made it this far, you probably have enough interest in reading the entire story.
I also recommend the climate pricing story in the same issue: https://www.nytimes.com/interactive/2019/04/09/magazine/climate-change-politics-economics.html