Climate litigation is becoming increasingly common in courts around the country, as affected parties turn to the judicial branch following more than a decade of congressional silence. With litigants taking their actions to court, judges have been forced to grapple with climate science as well as the fundamental legal issues implicated by climate litigation.
Because litigants have filed lawsuits primarily against fossil fuel companies, the importance of science in climate litigation is likely to mirror the importance of science in other areas of litigation, like the tobacco litigation of the 1990s. Just as the tobacco litigation forced plaintiffs to contend with industry-funded denial and junk science, climate litigants must confront sophisticated corporate defendants experienced in obstruction and the deployment of junk science. New litigation, however, has started to reveal cracks in the fossil fuel industry’s wall of climate denial.
The case of City of Oakland v. BP, in which the cities of Oakland and San Francisco challenged five major fossil fuel producers in a public nuisance lawsuit over climate change, illustrates both the opportunities and limitations of confronting climate science head-on through climate litigation. Although the federal district court for the Northern District of California ultimately held that Oakland’s nuisance claims were preempted by the Clean Air Act, the district court explicitly noted that its dismissal of the case was not dismissal of the science. Instead, in its order granting the defendant’s motion, the court noted that it “accepts the science behind global warming.” In so doing, the court set an important signpost for future litigants looking to bring climate litigation in court.
Three months before dismissing the case, the court ordered the first-ever climate science tutorial in climate litigation, asking both sides to present on key issues of climate science. Five fossil fuel companies submitted testimony to the official record in response to the tutorial, each accepting the scientific consensus on climate change. The companies’ collective admission of climate science marks a fundamental shift in the way that climate litigants approach the issue of climate science, illustrating a shift from climate denial and misdirection to an emphasis on the uncertainty.
At the same time, the court’s decision to dismiss the plaintiffs’ case reveals limitations to the power that climate science holds in court. Oakland is an illustration of how even strong science cannot necessarily overcome claims of federal preemption. Instead, it illustrates that any climate action through the judiciary must necessarily come from judges taking bold steps of their own; an outcome that, in turn, could potentially weaken a strong national push towards climate action.