Rhode Island Becomes First State to Sue Fuel Companies for Climate Change's Damage

by | July 3, 2018

By Alex Kuffner

Attorney General Peter F. Kilmartin on Monday filed suit in state court against some of the largest fossil-fuel companies alleging that they knowingly contributed to climate change and seeking to hold them responsible for its impacts on Rhode Island.

In the first case of its kind in the nation, Kilmartin announced the Superior Court complaint alongside Gov. Gina Raimondo at the Narragansett seawall, an iconic stretch of Rhode Island's 400-mile coastline that is under threat in the face of rising seas and more severe storms.

Kilmartin pointed to superstorm Sandy in 2012 and the historic spring floods of 2010 as examples of severe weather tied to climate change that have already caused damage in Rhode Island and have cost the state money to repair roads, bridges and other infrastructure.

"'Big Oil' knew for decades that greenhouse gas emissions from their operations and their products were having a significant and detrimental impact on the Earth's climate," he said. "Instead of working to reduce that harm, these companies chose to conceal the dangers, undermine public support for greenhouse gas regulation and engage in massive campaigns to promote the ever-increasing use of their products at ever-increasing revenues in their pockets."

The filing comes after two recent decisions in federal courtrooms in California on similar lawsuits related to the costs of climate change. One judge threw out a case brought by San Francisco and Oakland, acknowledging the science of climate change but saying that government, not the court system, is the proper venue to take up the issue.

But another judge allowed cases lodged by San Mateo and Marin Counties and the City of Imperial Beach to continue by sending them to state court. Other cities and counties, including New York City have brought cases in state courts, similar to what Rhode Island is doing, believing that their chances are better outside the federal system.

The Rhode Island lawsuit is a first because no other state has sued fossil-fuel companies for climate-change impacts, said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

Massachusetts and New York have launched fraud investigations into ExxonMobil over climate change, but perhaps the closest case to Rhode Island's was filed by a group of states against power companies in an attempt to force them to reduce emissions. The Supreme Court in that case ruled against the states, saying that air pollution is regulated by the Environmental Protection Agency.

The recent rulings in California might affect how the Rhode Island court treats the state's case, but they don't constitute precedent, Burger said.

"Neither of the decisions controls what happens in the court in Rhode Island," he said. "In addition, we have two decisions that say the exact opposite of each other. So a court in Rhode Island has a choice to go along with either of them or to go in whatever direction it wants."

The lawsuit came about after Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, got in touch in the spring with Raimondo, who was a student of his, she said. She referred him to Kilmartin.

"It's not dissimilar to tobacco," said Koh, who was at the news conference. "There is some level of corporate responsibility here."

Rhode Island is better positioned than other states to file a climate change suit because it has laid the groundwork with scientific studies on sea level rise and other impacts, according to Koh and the attorney general's office.

"The state has quantified the harms," said Neil Kelly, deputy chief of the office.

He is working with Sher Edling, the San Francisco law firm that is advising some of the plaintiffs in California. The state will pay the firm only if the fossil-fuel companies pay damages, Kilmartin said.

Because the case has been filed in state court, Rhode Island is not seeking to have other states join as plaintiffs, but Kilmartin said he will ask for amicus briefs.

The complaint names 21 defendants, including ExxonMobil, BP, Chevron and Shell. BP declined comment and representatives of some of the other companies did not immediately respond to requests. The National Association of Manufacturers called the lawsuit "frivolous."

"Taxpayer resources should not be used for baseless lawsuits that are designed to enrich trial lawyers and grab headlines for politicians," the group said in a statement.

The Rhode Island Progressive Democrats, which is supporting Matt Brown in his run for governor against Raimondo, dismissed the lawsuit as "a photo op" rather than "real action on climate change."

The lawsuit was announced hours after Raimondo released the first strategy for Rhode Island to prepare for climate change. She said that states have to take action because the federal government is not.

"We're going to stand up and protect our state against the threats of climate change in every way that we know how and using every tool at our disposal," she said.

The complaint details public assets and natural resources that have been damaged by or are under threat from climate change. They include:

573 miles of roadway and 163 bridges at risk in the event of a storm surge combined with seven feet of sea level rise [which is expected before the end of this century];

96 dams that are classified as "high hazard," meaning failure can result in loss of human life, and 81 that are classified as "significant hazard," meaning failure can result in major economic loss, disrupt critical facilities, or harm public health;

4,000 residential units and 800 commercial units that would be subject to some degree of flooding with seven feet of sea level rise.

Among the other officials at the news conference were U.S. Sen. Sheldon Whitehouse and Congressmen James Langevin and David Cicilline.

The stretch of beach below the seawall where Kilmartin announced the lawsuit has eroded steadily in recent decades, mainly because of coastal storms, which scientists say will become more frequent as the atmosphere warms. According to CRMC maps, Narragansett Beach has retreated inland by as much as 120 feet in places since 1939.

"The only thing protecting this community and the busy public walkways and byways in front of the beach from being inundated from the ocean during a storm is this iconic wall," Kilmartin said. "But it cannot hold back the rising sea levels and tides anticipated 20, 30, 50 years from now and the decades beyond."

(c)2018 The Providence Journal (Providence, R.I.)