I listened to a podcast this morning discussing the new California lawsuit against oil companies, in which climate change was referred to as a "crime against humanity," with damages in the "hundreds of billions or trillions of dollars."
Disclosure: I believe that we're significantly under-estimating climate risks, and that we should have seriously tackled climate change decades ago. But I'm skeptical of how lawsuits will play out. Here are some of the storylines that will be used in court by defendants.
Members of the Jury:
1. Policymakers have known about the risks of climate change for just as long as the oil companies, and have consistently encouraged and subsidized oil production. Does that make them guilty of a crime against humanity?
2. Companies have every right to represent their shareholders' interests in their lobbying and communications activities. This is a public policy problem, totally beyond the ability of individual corporations or corporate social responsibility to address.
3. Plaintiffs suggest that the industrial revolution was a crime against humanity, and that we should return to a horse and buggy world. Is that what you as a jury want to be responsible for?
4. If Exxon and other oil companies had stopped producing oil decades ago they would simply have been replaced by other producers. And the same goes for stopping oil production today. Again, this is a public policy problem, and policy-makers have failed to act for decades!
5. Would a win by Plaintiff stop climate change? No. We need to get on with tackling the problem and adapting.
6. Why are just the oil companies the defendants, when the electricity sector has emitted just as much CO2 to the atmosphere and represented its interests just as actively in the court of public opinion?
7. If you give Plaintiffs what they are asking for, what will happen next?
Members of the jury, is that what you want to be known for?
Personal Commentary: At a public trust conference many years ago, a leading environmental lawyer noted that a judge (and presumably a jury) would be "insane" to rule on these issues in the way being requested by plaintiffs like California. That still seems true to me based just on the storylines laid out above.
Regardless of how alarmed one is about climate change, as indeed I am, I'm skeptical that lawsuits will deliver on the expectations being raised (although they could have important albeit more subtle impacts on public opinion and policy-making).