Editorial: Climate change costs justify suit

November 10, 2019 | Our View

The heavy use of oil and gas across western economies has left its imprint in a warming climate and rising seas.

Now Hawaii, and communities worldwide, will have to confront the immense cost of recovery and seek to have the fossil fuel companies involved help pay for much of it.

When the bills come due, they will deal a devastating blow to state and municipal budgets. In 2014 lawmakers mandated a study, expanded three years later, titled “Hawai‘i Sea Level Rise Vulnerability and Adaptation Report.” Oahu alone could lose an estimated $13 billion in coastal structures and land, according to the report.

This wouldn’t be the first time governments have hit industry for the unplanned costs of its economic activity. In many ways, the current crisis — the advent of rising seas generated from climate change, and all the effects on shoreline infrastructure that are coming — approximates the course of the state-by-state legal battles with tobacco companies.

Those suits held the companies liable for the health effects of smoking. It’s the settlements hammered out in their wake that provided funding to the states, including Hawaii, for cancer research, stop-smoking programs and other initiatives countering illness linked to tobacco.

Now it’s the fossil fuel companies that are in the crosshairs. An examination of the circumstances suggests that assessing the industry for damages due to its carbon footprint would be a necessary, rational pursuit.

And it’s one that our city is poised to join, as is Maui County. In Honolulu, City Council members Joey Manahan and Ron Menor and Mayor Kirk Caldwell are pressing for adoption of Resolution 19-283.

It would authorize the Department of Corporation Counsel “to initiate legal action against fossil fuel companies to recover damages for their role in causing climate change and sea level rise, and associated impacts on the City and County of Honolulu.” The measure is due to be heard Tuesday and should be adopted, allowing city lawyers to begin the process.

A separate resolution also should be approved so that the city could hire the San Francisco-based firm Sher Edling LLP as expert outside legal counsel. The firm would work on a contingency-fee basis, meaning it would be paid only out of damages won through the legal action, which also makes sense.

Densely developed Oahu is surely the island facing the greatest losses from inundation of buildings, highways, utilities and all else that’s in place at the shoreline.

But as state-owned highways and parks are also part of the coastal infrastructure, the state is expected to be drawn into the legal action as well, said Marti Townsend, director of Sierra Club of Hawaii, among the numerous environmental advocates supporting the proposed lawsuit. Already Maui County Council is expected to hear a similar resolution.

Lawsuits have been filed by states, cities and counties seeking compensation for damages. Townsend said there are green shoots of progress, citing one case, launched by the city of Baltimore, in which a state court has rejected appeals by industry to move the case to federal court.

Advocates want to avoid federalizing the cases because some federal laws (including carbon-tax legislation) have waiver clauses excusing companies from liability. The ultimate hope, Townsend added, is that, as more cases move to the discovery phase, documents will emerge making the culpability of the companies clear.

And then the industry is likely to seek a global settlement that can yield financial support for climate-change adaptation in the various jurisdictions.

This pathway aligns roughly with the one followed in the tobacco cases, though there are differences. Opponents of the lawsuits argue that the fuels are useful products that powered the economy, unlike tobacco that merely fuels a physical addiction. And, they say, it was the government’s job to set a responsible environmental policy. They have a point: Government is not entirely in the clear here.

However, the lawsuits can contend, credibly, that, like tobacco companies, the fossil fuel industry knew more of the science than they let on, and at an early stage. Just one piece of evidence is an investigation by the nonprofit online publication Inside Climate News (insideclimatenews.org) that lays out alarm bells rung by industry scientists as early as the 1970s, while oil and gas executives aggressively sought to dismiss.

Example: In 1978 James F. Black, Exxon senior scientist, said “there is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels.”

By contrast, the CEO, Lee Raymond, said in 1997 that “currently the scientific evidence is inconclusive” on the effects.

That level of disinformation demands the full exposure of a broad legal challenge. And Honolulu’s step toward securing its share of the damages is one that taxpayers should support.