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Suing the Industrial Age

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Suing the Industrial Age

New York City’s lawsuit against oil companies for having caused Superstorm Sandy is absurd. January 11, 2018
Politics and law

Mayor Bill de Blasio announced yesterday that New York City is filing a lawsuit against Big Oil, seeking unspecified damages that will likely total in the tens of billions of dollars. The immediate cause for the suit, filed against BP, Chevron, ConocoPhillips, ExxonMobil, and Shell, is the damage and expenses associated with climate change— caused by the oil companies, on this view. In particular, the city wants to recoup the costs of rebuilding from Superstorm Sandy and the $20 billion that it plans to spend on storm resiliency. The fossil-fuel energy industry, the city’s lawsuit claims, “deliberately engaged in a campaign of deception and denial about global warming and its impacts, even while profiting from the sale of fossil fuels.”

Asked about the litigation strategy, de Blasio dismissed the suggestion that it might be hard to prove that the defendants caused the hurricane. “I think we are going to win the argument that climate change exists; I feel really confident about that one,” he chuckled. “And I think it’s pretty clear these five companies had something to do with it.” New York City corporation counsel Zachary Carter described the case as a straightforward tort action, based on damages from Sandy. “The theory of this lawsuit,” explained Carter, “is it exploits our nuisance laws, and that both in terms of public and private nuisance we believe that’s a cause of action that . . .  gives us certain strategic advantages in litigation.” The $200 billion, multi-state tobacco industry settlement, reached in 1998, is the model for the city’s litigation, said the mayor. “The tobacco analogy is important,” he observed, explaining that a cultural change occurred after Big Tobacco admitted to having buried evidence that cigarette use is unhealthy. “We no longer assume that the fossil fuel companies are innocent; in fact, if we identify them as guilty, it changes the reality . . . and that can spread like wildfire.”

But the analogy between the tobacco and fossil-fuel industries is misleading. Cigarette companies did conduct research on their proprietary tobacco formulations; the findings indicated that smoking had negative health ramifications on their consumers. The companies did suppress or distort their discoveries that smoking causes lung cancer and emphysema. A case can be made that the tobacco companies defrauded individual smokers by addicting them to a deadly product while lying about its safety. Energy companies, on the other hand, sell a product that was an integral element of the historical epoch called the Industrial Age, which has seen the world’s productive capacity expand by multiple orders of magnitude since 1850, and in which billions of people have been eager participants. Fossil fuels permeate every aspect of society, from transportation to manufacturing to food production; whatever our hopes for a green future, modern life for the past 150 years is unthinkable without oil, gas, and coal.

One imagines that the five defendants to this case will ask: Why us? As public corporations domiciled in the U.S., or with U.S. subsidiaries, they make convenient targets, but it’s absurd to assign the blame for any particular storm on these companies alone. Why doesn’t de Blasio sue Russia, Venezuela, Mexico, and Saudi Arabia over the operations of Gazprom, Citgo, Pemex, and Aramco—their national oil companies? Chinese energy giants Sinopec Group and China National Petroleum are larger than ExxonMobil and dwarf BP or Chevron. Moreover, China emits twice as much greenhouse gas as the United States. According to the mayor’s office, “more than half of the greenhouse gas pollution from the fossil fuel industry has occurred since 1988”; what sense does it make not to sue China, which, having expanded its industrial capacity and energy consumption heedlessly in the last 30 years, is surely responsible for a significant portion of those emissions?

It isn’t clear whether de Blasio believes that this case will go anywhere, or whether he is simply grandstanding to raise his national profile in preparation for a presidential run in 2020 or 2024. But when a reporter asked if he would cut back his frequent use of SUVs to shuttle him to Brooklyn for his daily workouts at the Park Slope YMCA, his answer was instructive. His convoy cars are hybrids, the mayor said, adding that the city is moving to replace its entire fleet of cars with electric vehicles, which emit no exhaust. Fair enough, but the electricity that powers those cars comes off the grid, and most of that electricity is still generated by oil, coal, and gas. The answer was typical of Mayor de Blasio, for whom gestures and virtue-signaling preempt practical management or governance.

Photo: nycmayorsoffice

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