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Assignment
Columbia Law School Climate Change Litigation Databases – the core resource for climate change litigation. Spend a few minutes getting a sense of the number and variety of climate change cases.
Last class we learned from Kivalina that American Electric Power Co., Inc. v. Connecticut (“AEP”), 131 S. Ct. 2527, 2535 (2011), which found that the CAA displaced federal nuisance cases against GHG emitters. State nuisance cases were not at issue in AEP and were not addressed by the Supreme Court. Since AEP, state and local governments (almost all in red states) have been filing state nuisance cases against the fossil fuel industry, primarily against oil companies. These are essentially misrepresentation cases based on the oil industry suppressing and misrepresenting information about the effects of GHGs from fossil fuel use. This resulted in less government regulation and more consumption of fossil fuels, and hence more climate change damages.
We are starting with articles about the claimed misrepresentations. The oil companies followed the denial playbook that was pioneered by the tobacco industry, including using some of the same organizations to manage the disinformation claims. There was a massive state class action against tobacco with a huge settlement fund, which helps drive these claims. Read these articles and be prepared to discuss this misrepresentation theory – pro and con because it is a complex question.
How the oil industry made us doubt climate change – (pdf)
Climate denial timeline for litigation
The first of these three articles is a peer-reviewed article analyzing climate communications by ExxonMobil and showing how its public position on climate change was at odds with its internal knowledge. The second is a criticism of the article, and the third is the response to the criticism by the authors. Scan these to see the arguments.
Next, we are going to read a complaint from a representative case. The same law firm has filed many of these cases so the complaints from most cases are similar. We will first review the docket to see what litigation in one of these cases looks like. These are in reverse chronological order, so scroll to the bottom to start with the earliest documents.
Delaware v. BP America Inc. – Docket
Then read the complaint. This is long and we may not finish on Tuesday. Read the introduction, scan the parties, and read carefully starting with Jurisdiction on page 61.
Delaware v. BP America Inc. – Complaint