San Francisco and Oakland are facing escalating costs because of sea level rise, and believe major fossil fuel polluters should pay for them. Photo credit: Ezra Shaw/Getty Images

By Bobby Magill

The cities of San Francisco and Oakland, Calif., filed suit on Wednesday against five oil companies—ExxonMobil, BP, Chevron, ConocoPhillips and Shell—in California state court to hold them accountable for their role in global warming-driven sea level rise, which is causing billions of dollars of current and future damage.

The lawsuits are part of mounting climate-related legal action against Exxon and other fossil fuel producers, including investor and employee suits and state investigations seeking to hold fossil fuel companies responsible for actions that are exacerbating global warming.

The cities’ litigation aims to force the companies to fund a sea level rise abatement program that will be used to build sea walls and other structures to protect about $49 billion in public and private property sitting within six feet of the current sea level. The cities cited research that says sea level may rise up to 10 feet by 2100, causing “catastrophic” damage, according to a report California officials released in April.

Exxon did not respond to a request for comment. A ConocoPhillips spokesman said the company would have no comment on pending litigation and referred to its stance on climate change on its website. None of the other companies responded to requests for comment or made public statements.

The property most at risk from rising seas in the San Francisco Bay Area includes the Oakland Airport, which is likely to be submerged by the Pacific Ocean by the end of the century, city officials said.

The lawsuits, filed separately, make a public nuisance claim against the companies and say the firms have known for decades that their products were accelerating global warming. Instead of acting to reduce harm, the companies attempted to undermine climate science and mislead the public by claiming fossil fuel production is environmentally responsible, the lawsuits allege.

Recent research ties 90 of the world’s largest fossil fuel companies to about half of all modern global warming, much of which has occurred since 1980. Exxon and other companies had already known for since the early 1970s that the fossil fuel they produce causes global warming, but they did nothing to mitigate the harm.

“These fossil fuel companies profited handsomely for decades while knowing they were putting the fate of our cities at risk,” San Francisco City Attorney Dennis Herrera said in a statement. “Instead of owning up to it, they copied a page from the Big Tobacco playbook. They launched a multi-million dollar disinformation campaign to deny and discredit what was clear even to their own scientists: global warming is real, and their product is a huge part of the problem. Now, the bill has come due. It’s time for these companies to take responsibility for the harms they have caused and are continuing to cause.”

Carroll Muffett, chief executive of the Center for International Environmental Law, said that the lawsuits open a new legal pathway for cities to address the impacts of climate change.

By focusing narrowly on what cities are having to spend now and what it will take to adapt to climate change, San Francisco and Oakland are presenting courts with quantifiable and predictable climate impacts, Muffett said.

“Costs can be quantified. They’re not an abstraction,” he said. “It will be difficult for the parties to argue that these claims are political or won’t have standing. The link between sea level rise and the need for San Francisco and Oakland to respond to that sea level rise are very straightforward.”

The cities’ case uses a slightly different strategy than a lawsuit filed in July by San Mateo and Marin Counties and the city of Imperial Beach against 37 fossil fuel companies for their role in sea level rise. The counties’ lawsuit makes claims of both public nuisance and negligence against the companies.

The cities, however, are making only a nuisance claim, and they targeted only the largest oil companies. The lawsuit states explicitly that the cities are not seeking to impose any liability for the companies’ greenhouse gas emissions and that they are not trying to stop the companies from producing fossil fuels.

“This case is, fundamentally, about shifting the cost of abating sea level rise harm — one of global warming’s gravest harms — back onto the companies,” the lawsuit states.

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, said the lawsuit’s public nuisance argument seeks only to shift the costs of climate adaptation from taxpayers to the companies responsible for global warming.

“They arguably come closer to putting a number on what they’re seeking from fossil fuel companies” than the counties’ lawsuit does, he said.

The case is similar to legal action against tobacco companies in the 1980s, he said.

“The basic idea being that these companies knew the risks and have known the risks and yet have carried on their activities despite that,” Burger said. “Plaintiffs are seeking to have them pay for the harms that have resulted from their actions.”

Ken Kimmell, president of the Union of Concerned Scientists, said the lawsuits are significant because, for the first time, two major cities are filing suit against the major fossil fuel producers to hold them accountable for playing a role in causing global warming.

“I think what’s happening here big picture is that as the federal government has gone AWOL on addressing climate change, it’s not surprising that people who are harmed by climate change are looking to the courts to offer a remedy,” he said. “It’s a very important start of a conversation about who is really responsible for climate change and who should be forced to bear the costs.”

Vic Sher, a partner in the law firm involved in the counties’ lawsuit, said the science clearly shows that fossil fuel companies’ pollution is causing sea level rise threatening coastal communities.

“Like our lawsuits, these new cases recognize the urgency and importance of coastal communities taking action to protect their people and property from the costs and consequences of climate change,” Sher said.