By Karen Savage
Communities that have filed climate liability suits against fossil fuel companies could get a legal boost from a recent decision against opioid manufacturers.
An Oklahoma state judge ruled last month that Johnson & Johnson must be held accountable for flooding the state with opioids over the past decade. Judge Thad Balkman ruled the company violated public nuisance laws and fined it $572 million to help the state pay for efforts to combat addiction and other expenses caused by the opioid crisis.
In more than a dozen climate liability lawsuits across the country, municipalities are alleging fossil fuel companies similarly violated public nuisance laws by contributing to climate change.
Like opioid companies that knew their products are addicting, Exxon, Shell, Chevron, BP and other fossil fuel companies knew for decades that their products damage the climate, but worked to keep that information from the public, according to the municipalities. They are seeking compensation for damage the climate crisis has already done to their communities and to protect their residents from its future impacts.
“The climate cases, like the opioid case in Oklahoma and the other opioid litigation nationwide, seek abatement or compensation for damages suffered by state and local governments under state public nuisance law,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.
The recent Oklahoma decision won’t be binding on the judges in the climate cases, Burger said, but the ruling, along with the outcome of a federal trial expected to begin next month in Ohio, could provide useful precedent and analysis for the judges to borrow from.
“In both sets of cases, the plaintiffs point to a long history of corporate knowledge about the harms their products cause, and concerted efforts to hide that knowledge and profit from business as usual,” he said.
Whether those similarities will translate to a similar win for the municipalities is yet to be seen.
“Addiction to opioids is different than addition to fossil fuels”
Some legal experts point out that while the climate and opioid cases are based on similar legal theories, the issues are not the same.
“The opioid crisis is just a fundamentally different kind of problem than the climate crisis. Addiction to opioids is different than addition to fossil fuels,” Burger said.
Richard C. Ausness, a law professor at the University of Kentucky Law School who has written on the opioid decision, said it would be much more difficult for a court to create a local abatement plan for climate change.
“Climate change is world-wide in scope and is going to require a multi-nation approach. Opioids is a much more narrow issue, which is not to say it’s not a serious problem, but it can be addressed certainly on a national level and probably to a certain extent on a state level as well,” Ausness said. “With climate change, just the scale of the problem requires a different kind of institutional response.”
That thinking, however, misses the point of the specifics of the lawsuits, which do not ask for the fossil fuel companies to address carbon emissions but instead focus on paying for damages caused by their products. U.S. District Judge William Alsup fell into that same legal pothole when he dismissed suits filed by Oakland and San Francisco because the problem was too big to blame on a handful of companies. His logic was echoed by another federal judge in dismissing New York City’s liability suit on the same grounds. The cities have appealed those rulings and await circuit court hearings.
Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA Law School, said that logic puts the court in unnecessary handcuffs. “It can’t be that a problem is so big that there’s no remedy for it,” said Hecht, who has advised some of the California municipalities that have filed suit.
“I think this is a challenging legal theory for people to get their minds around. The lawsuits don’t say the emissions themselves created the nuisance.
“The theory in the opioid case in Oklahoma, that the trial judge accepted, is the idea that by putting a product into the stream of commerce and misleading consumers about it in a way that causes harm, it is possible to create a public nuisance if the manufacturers actions in putting the product out there and misleading people about it created a large public health problem.”
Hecht also said there are strong similarities between the opioid decision and the lead paint decision in California.
In that case, 10 communities brought a public nuisance lawsuit in 2000 against paint manufacturers ConAgra Brands and Sherwin-Williams, arguing that the companies sold paint containing lead and marketed it as a safe product despite knowing it is toxic. It took more than a decade before a judge in Santa Clara County found the companies liable and an appeals court upheld that verdict in 2017. Last year, the U.S. Supreme Court also let the verdict stand.
“Ultimately the remedy for the climate cases will not be forcing anyone to reduce their emissions, it will be compensating for the impact of the emissions,” said Hecht, adding that it’s a subtle but very important distinction. “It’s not the same as telling companies they cannot emit carbon dioxide going forward, it’s simply saying you have to pay for the cost of your conduct— in that respect it’s very similar to the opioid case.”
Others—most notably the fossil fuel industry—have said climate change is a political question that should be dealt with by the executive or legislative branches of government. With the exception of the San Francisco and New York rulings, most courts have disagreed.
Ausness also questions whether claims of public nuisance can prevail.
“Even if you think litigation is a useful tool to deal with climate change, is public nuisance the right liability theory to invoke,” said Ausness, adding it’s an ancient legal theory and claims of public nuisance have historically been difficult to prove.
In Oklahoma, the court rejected Johnson & Johnson’s contention that public nuisance laws didn’t apply, but Ausness said that doesn’t mean public nuisance claims are a good fit for climate cases.
Another hurdle for climate lawsuits is causation. “Proving causation is much tougher with climate change because you have so many potential actors and they’re spread out all over the world, while with opioids you know who the manufacturers are and the distributors—it’s a relatively small group of people,” said Ausness,
Research has tied more than 70 percent of global warming to just 100 companies, dubbed the Carbon Majors, strengthening the causal chain and enumerating each company’s potential liability for climate impacts.
Hecht said in some states, including California, plaintiffs need only prove a company contributed to a problem in order to establish legal responsibility.
“It’s very common in our law for somebody to be held responsible for a harm even if it can’t be shown that they’re responsible 100 percent for that harm,” he said.
Ausness remains skeptical about drawing parallels between the issues of opioids and climate, but others find reason to believe the Oklahoma decision could help pave the way to legal progress against climate change..
“The fact that a judge in a place like Oklahoma was convinced of this is still significant in terms of how companies and local governments should look at these things,” Hecht said.
Climate cases based on public nuisance claims haven’t yet scored an opioids-like win, but that shouldn’t stop plaintiffs from pursuing them, said Sharon Eubanks, the attorney who led the racketeering case against the tobacco industry for the Department of Justice.
“I would probably go with as many causes of action as I could that included the one that I thought was my primary—and if that is nuisance, so be it,” Eubanks said, adding that for 50 years tobacco companies beat back every suit filed against them.
Like with tobacco, the opioid suits, which have been going on for more than two decades, weren’t immediately successful.
“For various reasons, virtually all of [the opioid] cases, at least those that were reported, were dismissed and never went to trial,” Ausness wrote.
Over the years, the fossil fuel industry has watched warily as attorneys crafted suits that the tobacco industry—and now the opioid industry—can’t shake.
“[Fossil fuel companies] aren’t trying to wriggle out of this for nothing, they see the possibility of something happening and just because it hasn’t happened yet, doesn’t mean it won’t come to pass in some case somewhere, as it has with the opioid cases,” Eubanks said. “Sometimes a novel approach–or what someone might call a novel approach—to the law is a good thing,”
Attorney Vic Sher, who is helping represent municipalities in many of the climate liability suits, is encouraged that the opioid suit was allowed to proceed in state court, where most climate suits have been filed. In all of the climate liability suits that have been filed by communities across the country, the companies are fighting to put them in federal court, where past climate-related cases have been decided largely in their favor.
“At the end of the day, Judge Balkman’s thorough and well-reasoned decision reinforces the fact that state courts are the appropriate venue for holding corporations accountable when they promote and sell dangerous products without warning, and when they deceive the public with deliberate disinformation campaigns designed to maximize their profits,” Sher said in a statement.
What are they really afraid of?
When it comes to using lawsuits to hold large corporations accountable and forcing them to pay for damages, we often judge a suit’s success based on the amount of financial penalties a company must pay,” wrote Stanton Glantz, a professor of medicine and the Truth Initiative distinguished professor of tobacco control at the University of California at San Francisco, in the Washington Post.
“For example, in the midst of the opioid epidemic, we fret about whether the $572 million extracted from Johnson & Johnson is justice enough for the hundreds of thousands who have died in overdoses. And when it comes to global warming, we focus on whether the lawsuit filed by Rhode Island can result in sufficient fines on oil and gas companies,” wrote Glantz, who with Eubanks co-authored Bad Acts: The Racketeering Case Against the Tobacco Industry. “But the outcome of these lawsuits shouldn’t just be about money. As litigation against the tobacco industry in the 1990s has shown, the most important thing that must emerge is the truth.”
For this reason, Eubanks said companies first try to get the claims dismissed. If that doesn’t work, they’ll often pursue a settlement to avoid discovery and the revelation of potentially damaging company secrets.
Johnson and Johnson was the only company to be tried in Oklahoma because other drug makers, distributors and retailers had already settled with the state.
Earlier this week, it was announced that Purdue Pharma was pursuing a potential settlement in suits brought by several states. If an agreement is reached, the company will avoid the first federal opioid trial, which is slated to begin next month in Ohio.
As the climate cases come closer to trial, Eubanks said it’s likely that at least some of the fossil fuel companies will be eager to settle.
“Once that truth is out there, as we saw in tobacco you can take it around the planet and show people what’s happening—you can influence laws that are being made,” Eubanks said. “When you talk about findings of fact or determinations at the end of a long jury trial, these are permanent scars on a company.”