Rhode Island has become the first state to sue 21 fossil-fuel producers, alleging they should be held accountable for the impacts of climate change. Joined by U.S. Senator Sheldon Whitehouse (D-RI) and Rhode Island Governor Gina Raimondo (D), the state’s attorney general Peter F. Kilmartin (D) announced the lawsuit at a press conference at the Narragansett Sea Wall early Monday afternoon. Rhode Island joins a handful of municipalities across the country that have filed similar lawsuits in the last year.
This is not Rhode Island’s nor Senator Whitehouse’s first run bringing a public nuisance claim against businesses operating in the United States. In 1999, when he was the state’s attorney general, Whitehouse pursued a public nuisance claim against paint companies in the Ocean State. The case bounced around multiple court rooms, but on July 1, 2008 – almost ten years ago exactly – the Rhode Island Supreme Court overturned a lower court’s ruling and dismissed the case, asserting the state had stretched the law of public nuisance beyond reasonable bounds.
If the events leading up to this case’s announcement are any indication, it is likely this case will end the same as Whitehouse’s previous failed public nuisance gambit.
Rhode Island’s lawsuit may be unique in that it is the first climate liability action brought by an entire state against fossil fuel producers, but in virtually all other aspects of the complaint, it is identical to the other lawsuits that have been filed by thirteen different municipalities across the country.
Like the other cities and counties, the state is suing on the grounds of public nuisance, trespassing, and negligence (among other claims). Like the other cities and counties, the state alleges the defendants’ “production, promotion, and marketing of fossil fuel products, simultaneous concealment of those products, and their championing of anti-science campaigns” worsened the impacts of climate change in Rhode Island. Like the other cities and counties, the state is being represented by one of the two primary law firms involved in these cases – Sher Edling. And, like the other cities and counties, the state’s argument does not hold up.
The timing of Rhode Island’s announcement is curious as just last week, a federal judge dismissed two of the first-filed climate liability lawsuits, which had made nearly identical claims based on the same facts of law as the Ocean State’s suit. After hearing both sides’ interpretations of the science behind global warming in a climate tutorial and arguments both in favor and opposition of motions to dismiss the case, U.S. District Court Judge William Alsup ruled that it was inappropriate to blame oil and gas companies for global warming, asserting that the courts were not the appropriate venue to set domestic and international policy.
Part of Alsup’s reasoning stemmed from a previous Supreme Court case – American Electric Power v. Connecticut – in which the court ruled that greenhouse gas emissions are a policy matter and thus only Congress, not the judiciary, has the power to regulate them. Congress has delegated that authority to the U.S. Environmental Protection Agency, via the Clean Air Act. Judge Alsup opined that while the plaintiffs claimed they were suing the energy companies because of their production of fossil fuels, their argument relied on fossil fuel emissions, a fact that led him to rule in concert with AEP:
“[D]efendants stand accused, not for their own emissions of greenhouse gases, but for their sale of fossil fuels to those who eventually burn the fuel. Is this distinction enough to avoid displacement under AEP and Kivalina? The harm alleged by our plaintiffs remains a harm caused by fossil fuel emissions, not the mere extraction or even sale of fossil fuels. This order holds that, were this the only distinction, AEP and Kivalina would still apply. If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori, they cannot be sued for someone else’s.”
Rhode Island’s complaint likewise tries “to dress a wolf up in sheep’s clothing,” as another federal judge recently said of New York City’s climate lawsuit. Rhode Island establishes emissions as the cause of its alleged nuisance, but then skips a couple of steps to try to blame the producers:
“Defendants are vertically integrated extractors, producers, refiners, manufacturers, distributors, promoters, marketers, and sellers of fossil fuel products. Decades of scientific research show that pollution from the production and use of Defendants’ fossil fuel products plays a direct and substantial role in the unprecedented rise in emissions of greenhouse gas pollution and increased atmospheric CO2 concentrations since the mid-20th century. This dramatic increase in atmospheric CO2 and other greenhouse gases is the main driver of the gravely dangerous changes occurring to the global climate.”
Some reporters immediately saw through the ruse, with Rhode Island’s most prominent news publication, The Providence Journal, comparing the state’s lawsuit to AEP in its initial coverage of the announcement.
“…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 ruled in that case that air pollution is regulated by the Environmental Protection Agency.”
What does it say about Rhode Island’s chances of succeeding in this case if the “closest” comparison the Journal could find was one in which the U.S. Supreme Court unanimously ruled against the plaintiffs? The Journal also reports that the announcement generated immediate criticism in the state, with the Rhode Island Progressive Democrats dismissing the all-Democrat announcement as nothing more than “a photo op.” The Progressive Democrats said the lawsuit will do nothing to support “real action on climate change.” Their pushback mirrors the widespread bipartisan criticism of lawsuits recently filed in Colorado and Washington State.
Kilmartin’s choice to pursue nuisance litigation is notable as two of his allies – Massachusetts Attorney General Maura Healey and New York Attorney General Barbara Underwood – are currently investigating ExxonMobil for alleged “fraud” related to climate change. The New York investigation was launched by Underwood’s predecessor, Eric Schneiderman, who was forced to resign earlier this year over allegations of assault.
Rhode Island, New York and Massachusetts are all members of the Green 20, a coalition of state AGs formed with the goal of coming up with “creative steps to combat climate change.” Investigating ExxonMobil quickly became their most notoriously “creative step.”
Since the Green 20’s formation two years ago, only New York and Massachusetts have actually commenced investigations, while the other AGs quickly headed for the exits. Kilmartin’s decision to try a public nuisance lawsuit, rather than get himself sucked into Healey’s and Underwood’s floundering investigations, effectively spells the end of the Green 20. Though with judges from New York to California already expressing skepticism of these public nuisance claims, Rhode Island may want to drop their lawsuit before someone forces them to back up their claims.