By Dana Drugmand
As fossil fuel companies try to fend off climate liability lawsuits from coastal California communities, a recent study revealed some alarming flood projections for the San Francisco Bay Area, bolstering the communities’ argument that rising seas pose imminent harm.
The study looked at land subsidence, or land that is sinking, which exacerbates flooding risk as sea levels rise. Previous flood hazard maps underestimated the land area at risk by up to 90 percent, researchers found, because they were based only on sea level rise projections.
Taking the sinking land into account adds to the urgency, and projected costs, of adaptation.
“As sea levels rise and subsidence increases, and possibly groundwater increases, we have a perfect storm of very significant challenges and problems,” said Diana Sokolove, senior planner for the San Francisco Planning Department. “We’re looking at billions of dollars [in costs] over time.”
San Francisco and neighboring Oakland are demanding that the big oil companies—ExxonMobil, Chevron, Shell, BP, and ConocoPhillips—help foot the bill. The cities claim the companies knowingly extracted and sold a dangerous product that resulted in climate change harms like sea level rise, which constitutes a public nuisance. For relief, the cities want the companies to pay into an abatement fund that will help cover the costs of building seawalls and other adaptive infrastructure.
On the eve of a climate science tutorial requested by Judge William Alsup in a San Francisco courtroom last month, the five defendants jointly filed a motion to dismiss the lawsuits. Plaintiffs then filed an amended complaint bringing nuisance claims under both federal and state common law, and the defendants are expected to file a new motion to dismiss by April 19. Their arguments in the original motion, now withdrawn, offer insight into why they believe they should not be held accountable. While parts of San Francisco could literally be underwater by century’s end, the oil companies insist they cannot be held liable for the damages.
Arguments for Dismissal
The defendants’ first argument is that the Clean Air Act displaces the plaintiffs’ nuisance claims under federal common law. Courts have come to this conclusion in previous climate change nuisance cases (AEP v. Connecticut and Native Village of Kivalina v. ExxonMobil). The defendants argue that ultimately it is the emissions created when fossil fuels are burned that cause harm, and in those cases, courts have held that the Environmental Protection Agency is authorized to address emissions via the Clean Air Act.
The defendants list several more reasons why a federal common law claim for public nuisance is not valid: 1) the defendants’ activity (selling fossil fuels) was not illegal; 2) the defendants only sold the product and are not responsible for the combustion of fossil fuels; 3) the causal chain is too complex; 4) damages cannot be awarded for speculative future harms.
Third, defendants argue that even if there were viable federal common law claims, the courts are not the proper venues to bring relief as it threatens the separation of powers. The federal government has had to balance environmental regulation with “economic and social interests,” they note. They mention President Trump’s decision to withdraw from the Paris Climate Agreement, a decision he said is based on economic concerns, as an example.
The defendants also contend that federal statutes and policies expressly encourage the development of domestic fossil fuels. “Put simply, Plaintiffs seek to use federal common law to punish the precise conduct that Congress has encouraged for decades—the development of domestic energy supplies,” they wrote in their original motion to dismiss.
All of the defendants except for Chevron, which is headquartered in California, filed separate motions to dismiss for lack of personal jurisdiction.
In responding to a request for comment, Chevron spokesman Sean Comey reiterated some of these points and described steps the company is taking to address climate risk.
“Chevron welcomes meaningful efforts to address the issue of climate change, but litigation is not an appropriate tool for accomplishing that objective,” Comey said. “Under the Clean Air Act, the responsibility for regulating greenhouse gas emissions has been assigned to the EPA. The relief Plaintiffs seek would require a single judge to unilaterally change the nation’s energy and environmental policies. That would be improper and unconstitutional.”
Chevron said the Paris Agreement is a first step toward a global framework that aligns with Chevron’s Policy Principles for addressing climate change. “Global engagement is needed to solve this global issue,” Comey said. “As governments further consider pursuing specific policies and actions, Chevron remains committed to working with policymakers to help inform any decisions and actions. We work constructively with governments toward balanced policies to address potential climate change risks while providing access to reliable and affordable energy to support social and economic progress.”
“Chevron is taking prudent, practical and cost-effective actions to address potential climate change risks, including managing emissions, testing new technologies and increasing efficiency,” Comey added. He said the company has reduced flaring by 22 percent since 2012, which reduces emissions, and has invested $1.1 billion in carbon capture and storage projects in Australia and Canada.
Sinking Land and Rising Seas
While Chevron and its oil industry peers deny responsibility for increasingly severe climate impacts stemming from fossil fuel use, the San Francisco Bay Area is grappling with those impacts.
Sea level has already risen 8 inches over the past century, and experts predict an additional 3 to 6 feet of sea level rise by 2100. Some parts of the Bay Area are built on engineered landfill and are more susceptible to subsidence and as sea level rises, they are especially vulnerable to inundation. The study examining land subsidence and sea level rise in the Bay Area estimates that a range of 48 to 166 square miles is threatened. In worst-case scenarios, half of the runways at the San Francisco airport could be submerged by 2100.
“The study points out that areas built on fill, such as San Francisco International Airport (SFO) and Foster City, both of which are located in San Mateo County, are sinking about ½ inch per year,” said Dave Pine, president of the Board of Supervisors for San Mateo County. “That means that sea level rise resulting from the fossil fuels produced by the companies San Mateo County is suing poses even greater risks than we thought.”
San Mateo County along with Marin County and the city of Imperial Beach have brought similar lawsuits against a larger number of fossil fuel companies. The nearby city of Richmond, as well as the city and county of Santa Cruz, are also suing a number of these companies.
These communities are facing billions of dollars in costs for dealing with localized impacts of climate change. In San Mateo County, Pine said there is more than $30 billion in damage costs projected by 2100. In San Francisco, Sokolove said the city did a study of the cost of doing nothing, which turned out to be upwards of $75 billion.
According to Pine, both San Francisco International Airport and Foster City are spending millions on constructing berms and sea walls to protect against sea level rise.
“Foster City is asking voters in June to approve a $90 million general obligation bond to fund improvements to an existing 8-mile levee. The new levee would protect the city against projected sea level rise through 2050, and would have an adaptive design that would allow the city to further fortify the levee after that date,” he said. “SFO has completed a shoreline protection feasibility study, which considered projected sea level rise through 2060. SFO estimates that protecting the airport through that date will cost between $200 and $300 million.”
San Francisco is examining vulnerabilities of specific areas and properties, building off of a Sea Level Rise Action Plan study completed in 2016.
“What we’re doing is trying to get an understanding of what assets are at risk, and what the consequences of those assets becoming exposed and inoperable may be,” said Sokolove, who is also co-chair of the Adapt SF initiative.
She described some areas that are most vulnerable, including Ocean Beach on the western shore and the waterfront and Mission Bay areas on the eastern shore. Ocean Beach is experiencing significant erosion and storm surge impacts from sea level rise. “We’re really losing our beach,” Sokolove said. “A lot of the infrastructure that is protected by the beach sea wall is at risk.” She said that amounts to several billion dollars of wastewater infrastructure, homes and businesses. Historic buildings and piers on the eastern side of the city are also at risk. “A lot of the area on the eastern shoreline is just made up of fill and rubble from the 1906 earthquake. It’s artificially built waterfront land, and that land is subject to subsidence.”
Sokolove said that despite the challenges, the city is gearing up to protect residents and vulnerable waterfront areas.
The cost burden of doing so should be on the fossil fuel companies, said San Francisco City Attorney Dennis Herrera. “These companies have made enormous profits while putting our cities in harm’s way. Now, the bill has come due. It’s time for them to pay for the seawalls and other infrastructure needed to protect San Francisco and Oakland,” he said in a statement following the recent climate change tutorial.
Pine echoed the call for polluters to pay their fair share of the damages. “SFO, Foster City and other San Mateo County shoreline communities now face extraordinary costs to defend against sea level rise,” he said. “The fossil fuel companies who obfuscated the causal link between their products and climate change must be held accountable for the harm their products have caused. With land subsidence occurring along the Bay Area shoreline, the threat of sea level rise has only grown worse.”