Eugene weekly., August 03, 2017, Page 9, Image 9

NEWS
BY CAMILLA MORTENSEN
SUITS SEEK TO STOP CLIMATE CHANGE
The courts offer hope in game-changing climate lawsuits
ATTORNEY PHILLIP
GREGORY SPEAKS
AT THE FEDERAL
COURTHOUSE IN
EUGENE
PHOTO: THECLIMATEMOBILIZATION.ORG
A
s the temperatures climb over 100 degrees in
Lane County, the science continues to mount
proving that man-made climate change is a
growing catastrophe worldwide. And as the
Trump administration reduces and even stops
work at the federal level to slow the course of global warm-
ing, youth and local governments are using the courts to try
to stem the tide of fossil fuel induced disaster.
The 21 young plaintiffs of the Our Children’s Trust law-
suit, Juliana v. United States, are making a constitutional
case based on the public trust doctrine, arguing that if the
government is causing harm to the climate system, it needs
to be enjoined to stop the harm.
The latest legal hurdle in the case is the Trump adminis-
tration’s attempt to get a “writ of mandamus,” a move one
of OCT’s attorneys, Phil Gregory, calls, “extraordinary” in
that it is not commonly used. He adds, “It’s an extraordi-
nary procedure, not often done.” But, he says, the youth
climate case itself is an extraordinary case.
If granted, the writ would allow the Ninth Circuit Court
of Appeals to independently review and possibly overturn
the decision, made here in Eugene by District Court Judge
Ann Aiken, to let the case move forward, and end the case
before it even goes to trial.
Gregory says, “The government has overplayed its
hand and said it was subject to onerous discovery obliga-
tions, which in fact have not come to pass.” In lawsuits,
parties get documents pertinent to the case from one anoth-
er through the discovery process, but Gregory says when
the OCT attorneys reply to the U.S. Department of Justice
at the end of August they will explain that discovery has
not been an issue. “The parties so far have been able to
work out differences.”
On July 25, the same three-judge panel that ordered
OCT’s attorneys to file an answer to the Trump administra-
tion’s petition for a writ of mandamus granted a temporary
stay of proceedings in the case in district court while it
considers the petition.
Meanwhile, in California, lawyers have filed lawsuits
that the Washington Post headlined as the “next big strate-
gy for suing over climate change.” In these cases the attor-
neys are battling climate change using “nuisance theory”
rather than the constitutional argument OCT is using.
The cases argue that under California common law, 37
fossil fuel companies have injured the City of Imperial
Beach and Marin and San Mateo counties by contributing
to rising seas, resulting in more frequent and severe flood-
ing. The companies include Chevron, Shell and Rio Tinto.
“Climate change is the issue of our time,” attorney Vic
Sher says. He was also a lead attorney on the spotted owl
litigation in Pacific Northwest forests in the 1990s that was
a game changer during the “forest wars” of that time.
“The lawsuits rest on the idea that the injuries suffered
from sea level rise are the results of decades-long disinfor-
mation and deception knowingly undertaken by members
of the fossil fuel industry,” he says.
Science now allows us to draw direct connections be-
tween emissions and impacts and then attribute those emis-
sions to specific companies, Sher argues. There is a “causal
connection,” he says, between fossil fuel companies and
sea level rise. Documents from the University of Texas
archives that were combed through by reporters from the
Columbia School of Journalism, InsideClimate News and
the L.A. Times show that the companies were aware of the
impacts of climate change.
For example, according to a 2015 InsideClimate News
story, in 1978 a top technical expert “warned Exxon scien-
tists and managers that independent researchers estimated
a doubling of the carbon dioxide (CO 2 ) concentration in the
atmosphere would increase average global temperatures
by 2 to 3 degrees Celsius (4 to 5 degrees Fahrenheit), and
as much as 10 degrees Celsius (18 degrees Fahrenheit) at
the poles. Rainfall might get heavier in some regions, and
other places might turn to desert.”
Sher says the fossil fuel industry in the late ’80s and
early ’90s took a “deliberate turn to tobacco industry tac-
tics working to seed doubt” about human-caused climate
change.
The 37 companies named in the complaints are respon-
sible for approximately 20 percent of all industrial carbon
dioxide and methane pollution between 1965-2015, ac-
cording to the lawsuits’ press release.
Sher says, “The case will use state law, strong science
and the evidence of corporate decision-making.”
Gregory, who lives in San Mateo County, is not only
familiar with the California lawsuits, he has worked in the
past with one of Sher’s co-counsels on lead paint cases in
that state. The lead paint suit argues on behalf of 10 Cali-
fornia cities and counties that companies understood the
health hazard of lead paint but nevertheless promoted its
use, leading to the poisoning of thousands of children each
year.
Gregory says of the California sea level lawsuits in
comparison to OCT's constitutional case: “Our cases are
only similar to the extent they are both based on long-term
knowledge of the problem.”
But he adds, “It’s extraordinarily important to go after
fossil fuel industry based on its knowledge and concealing
what happened. We can’t let any industry hide the ball and
lie about it. The federal government won’t go after them,
so it’s very important that the states and county govern-
ments go after them. I’m very, very glad they brought the
case because it’s based on long-term knowledge.”
Sher says, “I think the courts have always provided the
last hope for a level playing field for citizens and for com-
munities injured by large corporate interests.”
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