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June 26, 2023

Will Attribution Science Help Climate Plaintiffs?

Mark Trexler

One of our local counties here in Oregon recently filed a lawsuit against several fossil fuel companies in an attempt to hold them responsible for a deadly heat wave (a "heat dome" caused by a hot air mass under a large area of high pressure) that occurred in the Pacific Northwest in 2021. The suit alleges that the companies’ greenhouse gas emissions played a significant role in causing the heat dome, and that studies have now shown the connection.

I agree that improving attribution science will incentivize more litigation. But I wonder if it will result in the verdicts and monetary awards being sought.

Fossil fuels globally have historically earned about ~$1.5 trillion annually (higher last year). Total global market value of the industry is ~$5 trillion. Multnomah County is asking for $50 billion. Let's hypothetically say they are awarded $10 billion (with $3 billion going to the lawyers who took the case on a contingency basis). What happens next is likely to be 1,000 similar lawsuits (minimum) filed almost immediately around the U.S. and the world -- arguably leading to a sudden collapse of the global fossil fuel sector.

IMAGINE the implications. It is those implications that will probably be most on trial. Even taking attribution for granted, what are the questions that a judge and jury will have to grapple with in order to come a "climate-favorable" verdict? To list just a few:

  • Did the actual emissions of the defendants cause the heat dome?
  • What fraction of heat dome damages would defendants be responsible for based on their contribution to climate change?
  • How much was the heat dome worsened by climate change?
  • Given impact non-linearities, what fraction of heat dome damages were caused by climate change?
  • How is what the industry did really that different from efforts by any industry to influence public opinion in its favor?
  • Didn't policy makers have all the information needed to enact climate policy, regardless of industry misinformation campaigns?
  • Aren't consumers ultimately responsible for their purchasing decisions when it comes to fossil fuels?
  • Will jurors want to pay much more for their gasoline and electricity based on a "climate-favorable" verdict?
  • Will jurors want to wipe out the millions of Americans who own fossil fuel stocks?
  • Would a "climate-favorable" verdict significantly reduce the chance of another heat dome?

A leading lawyer at a public trust conference some years ago noted that a judge (and presumably a jury) would be "insane" to deliver the kind of outcome being requested by Multnomah County. That still seems true, regardless of improvements in attribution science and regardless of how alarmed one is about climate change - as indeed I am!

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