It’s been a busy year of municipalities suing fossil fuel companies.
In July, three Californian communities filed a lawsuit against 37 oil and gas companies for their contribution to climate change. Only two months later, San Francisco and Oakland launched their own against five majors, including Chevron, ExxonMobil and Shell. A handful of Vancouver Island municipalities have also sent letters to 20 oil and gas companies demanding compensation for climate damages.
Could car companies be next?
That’s a question that Martin Olszynski, law professor at the University of Calgary, has been wrestling with following his recent research into the history of lawsuits against tobacco companies.
“It was the cigarette manufacturers themselves that produced the vehicle by which tobacco was consumed and then gave rise to all kinds of harm,” Olszynski said in an interview with DeSmog Canada. “We don’t produce oil and gas to consume directly. A large driver of demand is the automobile: the internal combustion engine.”
Here’s a rundown on what lawsuits against auto manufacturers might look like.
Most Climate Lawsuits Filed Against Governments, Not Companies
The first thing to know is that while popular in concept, climate change lawsuits against corporations have always been very tricky to pull off.
Almost all of the 884 climate change cases that have been filed around the world have been against governments for alleged actions or inactions. While still challenging, it can be fairly straightforward to demonstrate liability by showing how a government’s specific decisions undermine climate commitments.
The same can’t be said for suing companies.
Historically, it’s actually been very difficult to prove that the actions of specific companies have resulted in quantifiable climate damages. There’s also the element of alleged complicity by the consumer in making the decision to buy the product.
But that’s changing.
Recent reports by the Carbon Disclosure Project and Climate Accountability Institute have identified between 90 and 100 fossil fuel companies as contributing over two-thirds of greenhouse gas emissions. It gets extremely specific: for example, China’s coal plants spewed out 14.3 per cent of global emissions between 1988 and 2015, while Saudi Arabia’s Aramco contributed 4.5 per cent.
In recent years, there have also been huge improvements in climate science and massive revelations about the role that oil and gas companies have played in suppressing information about climate science, bolstering the chances of potential lawsuits.
— DeSmog Canada (@DeSmogCanada) November 1, 2017
Fossil Fuel Companies Arguably More Liable Than Automakers
Yet there’s still been very little discussion about the role of automakers.
Andrew Gage, staff counsel at West Coast Environmental Law and co-author of a climate compensation act that makes it easier for jurisdictions to sue large emitters, said that fossil fuel companies have historically been targeted as they’re far more implicated in the proportion of global emissions.
After all, oil and gas products aren’t just used in passenger vehicles, but in aviation, agriculture, heavy industry and heating.
“The fundamental questions about the profitability and the responsibility of the fossil fuel economy as a whole would be beyond what the auto manufacturers play,” he said in an interview with DeSmog Canada, adding that it makes sense to start lawsuits against the industry that’s played the biggest role as it’d be possible to reclaim a higher percentage of damages.
Automobile Lobby Group Sent Letter to New EPA Head Requesting Policy Rollback
Olszynski acknowledges that it’s harder to argue “public nuisance” against car manufacturers as they don’t pull the oil out of the ground themselves, nor are they driving the vehicles. It’s also difficult to prove damages as harm against municipalities may not have materialized in full yet, but will in the future.
But he’s identified two major recent events that might boost the case for suing over negligence.
The first is a letter sent by the Alliance of Automobile Manufacturers to the newly appointed head of the Environmental Protection Agency, Scott Pruitt, requesting a reversal of fuel efficiency standards for 2022 to 2025 models.
(Incidentally, only one major lawsuit has been launched against car companies on the grounds of climate change damages: 2006’s California v. General Motors, which was eventually dropped because of former U.S. president Barack Obama’s commitment to tighten those same fuel efficiency standards.)
The second example that Olszynski pointed to is explicit industry opposition to the proposal of a “zero-emissions vehicle mandate” in Canada — which would require a certain percentage of new cars to be electric, hybrid or hydrogen fuel cell. The auto industry also suggested they have little control over consumer tastes.
Olszynski said that he finds that suggestion “completely divorced from reality.”
In a recent post on the subject, he wrote: “In my view, it is at least arguable that the automobile industry is — and has been for some time — in breach of its duty to warn consumers of the climate change risks associated with its [internal combustion engine] model vehicles, creating a reasonably foreseeable risk of harm to plaintiff municipalities.”
In other words, there’s a solid case to be made that car companies with full knowledge of climate change have taken clear actions to delay or reverse legislation that would significantly reduce emissions.
“The technological choices auto manufacturers make have a huge impact on emissions,” Keith Stewart, climate and energy campaigner for Greenpeace Canada, told DeSmog Canada.
“They’ve known about this problem for a long time. They were part of the original fossil fuel coalition that opposed action on climate change back in the ‘90s where their product was doubt.”
Tobacco Lawsuits Took Decades to Succeed
Many of the details of related litigation still need to be worked out.
Olszynski said lawsuits like this would seriously push the envelope of current tort law and doctrine. Proving “negligence” requires that a defendant breached a “duty of care” to the plaintiff, but municipalities aren’t legally owed that duty of care by car companies. In addition, some of the “attribution science” that apportions liability to certain players is a bit uncertain.
“The minute you start to bring in the auto manufacturers, you have to start thinking about how to apportion responsibility,” Olszynski said.” Is it a 50/50 [between fossil fuel and car companies], in the context of gasoline production that’s destined for transportation use? Increasingly, the sense I have is that analysis just hasn’t really been done yet, in part because no one is totally clear on how to approach that issue.”
The history of tobacco litigation also serves as a powerful example here. Lawsuits against tobacco companies started back in the 1950s, picking up steam — or smoke, perhaps — in the 1980s. All the early ones were beaten back.
But as Stewart mentioned, they resulted in public disclosure of internal documents and enabled new cases. Eventually, laws were rewritten to hold those companies to account.
Then, in 2000, Philip Morris was ordered by a California jury to pay out over $51.5 million to a smoker with inoperable lung cancer, throwing the doors open to more successful lawsuits. Just two years ago, a Quebec court ordered three tobacco companies to pay out $15 billion following a class action lawsuit.
The same could happen with auto manufacturers, with big questions worked out along the way.
Complexity of Lawsuit Not a Reason to Abandon It, Expert Says
There’s one more option that Olszynski mentioned: a third-party claim.
In that case, oil and gas companies would be initially named as defendants. Then, those companies could drag automobile companies into the lawsuit by arguing that they’re simply “meeting a demand” for oil that’s predominantly used by automobiles.
“When push comes to shove, and if this litigation starts to become more of a credible threat, I think they might be inclined to reach out and spread the love, if you will,” Olszynski said.
There’s no doubt any lawsuits of this kind would be extremely complicated. But Gage argues, the public will end up “paying for everything” in damages if a collective conversation isn’t had about the role these industries play in accelerating climate change.
“It’s recognizing that the complexity of the relationship between these two industries should not be a reason to let them off the hook,” he said. “Because otherwise, we’re paying.”