By Ucilia Wang
Former California governor Arnold Schwarzenegger said he wants to sue oil companies for first-degree murder, a move that will focus the public’s attention on their role in climate change but one that will face considerable hurdles in court.
Schwarzenegger, speaking at South by Southwest (SXSW) at an event hosted by Politico, said he had been talking to law firms about suing Big Oil producers because they knew about the public health risks of climate change and should pay for the costs.
“We’re going to go after them, and we’re going to be in there like an Alabama tick. Because to me it’s absolutely irresponsible to know that your product is killing people and not have a warning label on it, like tobacco,” he said during the live podcast on Sunday.
Schwarzenegger, a Republican, built a legacy of championing climate change policies during his time in office and afterward as he has returned to his acting career. That effort so far has mostly involved speaking at high-profile events, fundraising for climate-related projects and using social media to press his case, such as this Facebook post titled, “I don’t give a **** if we agree about climate change.” He has been a frequent critic of the Trump administration, particularly its efforts to undo climate policy and promote fossil fuels.
Schwarzenegger didn’t spell out the nature of lawsuit he plans to file and whether he will be a plaintiff. But some of the legal challenges he will face are already apparent, said David Levine, a professor at the University of California Hastings College of Law.
“It’s not clear to me how he will be able to really frame the case,” Levine said. “It’s problematic. It’s not a good lawsuit even for a superhero.”
As a plaintiff, Schwarzenegger has to show how he has suffered at the hands of oil companies, and that will be difficult to establish. Cities such as San Francisco and New York City are suing oil companies on behalf of their residents and claiming that climate change has caused public harm because it leads to stronger hurricanes and wildfires that require cities to spend billions of dollars to build sea walls, elevate roads and invest in other public safety projects.
Kassie Siegel, director of Climate Law Institute at the Center for Biological Diversity, said a lawsuit by Schwarzenegger would at least put an uncomfortable spotlight on oil companies.
“It’s terrific that Schwarzenegger is considering litigation. It’s an extremely important advocacy method,” Siegel said. “It’s important to have more plaintiffs sue fossil fuel companies, which are at the heart of the problem.”
Schwarzenegger could model a case after Juliana v. United States, whose plaintiffs are individuals, not governments. But they are a group of young people in their teens and early 20s who argue that the federal government has violated their constitutional rights to life and liberty by promoting fossil fuel-centric energy policies.
The science is clear that burning fossil fuels generates carbon emissions that causes climate change. But while there is evidence showing how much each major oil company contributes to global warming, it is harder to draw the line to specific climate disasters that affect a city or a person, Levine said.
Without pinpointing the cause and effect makes it difficult for a judge to assign responsibilities and determine compensations. Which companies caused the sea level to rise along the San Francisco coast? Should some companies pay more than others?
“You can say oil companies knew they were contributing to climate change, but you can’t say Superstorm Sandy was caused by the use of a particular percentage of petroleum products,” Levine said.
Because tracing the cause is tricky, Schwarzenegger’s comparison of oil producers to tobacco producers isn’t fitting, he added. Cigarette makers were found to have manipulated the chemical makeup of the cigarettes to make them addictive. Americans’ addiction to driving and reliance on fossil fuels for other energy needs is hardly caused by oil producers alone.
There was a case in California in which the state Supreme Court ordered a group of drug companies to pay because the court couldn’t determine which company was at fault.
In the 1980 product liability case, Sindell v. Abbott Laboratories, the plaintiff claimed that she developed cancer as a result of her mother taking an unsafe drug, diethylstilbestrol, during pregnancy to prevent miscarriage. She couldn’t identify who made the drug and sued 11 companies that produced it. It became a class action suit and the court ordered the companies to pay based on their market shares of the product.
Levine noted the Sindell case has a “defined universe” of players that shared the blame, and that’s harder to create in a climate change case, where the oil companies can argue the responsibility for burning fossil fuels spreads much wider than them.
But that doesn’t mean the man known as the Terminator won’t try.