While a U.S. Supreme Court ruling ended climate lawsuits alleging violations of federal common law on nuisance to the public, a second round of state actions could go further, recently said researchers.
There are two broad categories of new evidence that are now available for oral argument, said Stephen Jones, general counsel for Praedicat, a liability risk analysis company, in a Reinsurance Rendez-Vous virtual presentation from September to mid-September.
After explaining that a 2011 United States Supreme Court ruling found that the Clean Air Act supersedes federal liability claims, he said a second wave of about 18 cases had started to hit Canadians. state courts circa 2017.
“A new category of evidence that may strengthen these cases is evidence that specific oil and gas companies were aware of the potential effects of greenhouse gas emissions on the climate much earlier than the rest of us, in some cases as early as the 1960s. “This evidence may show that not only did these companies know that there was the possibility that their actions would cause harm to potential plaintiffs, but we in fact know the date on which they knew. We know when due diligence is attached, ”he said
“All of this evidence is very strong and involves at least one defendant in each of the 18 cases,” he said.
In addition, science has changed a lot since the first federal cases filed from 2004 to 2012 and overturned by the Supreme Court ruling. “Climate science is one of the most studied fields,” he said.
What makes it easier for plaintiffs to work is the acceptance of the science of attribution, explained Adam Grossman, co-founder of Praedicat. “The science of attribution is really this idea that you can go in and look at climate models and you can run different essentially alternate universes that ask, ‘What would have happened in our normal climate before global warming? How often would you see a Category 5 storm hit the Gulf Coast? Or how often would you get a million acre wildfire in California? “
Grossman, who is the senior scientist and vice president of modeling at Praedicat, said climate models allow assumptions of no change or different levels of global warming overall to assess how much of the current risk is due to climate change. “When the Pacific Northwest heat wave hit earlier this year, studies were released almost immediately telling us it was 150 times more likely than before anthropogenic climate change.”
“This body of science is now really telling us how likely these things would have been to happen. [before] and what is their likelihood now. The difference between these offers a significant enough opening for plaintiffs to argue that this would not have happened without climate change, or that climate change is a substantial contributor depending on the different legal standards they have to demonstrate.
It’s also possible to go back and assess which companies contributed what percentage of greenhouse gases, he said, referring to carbon dioxide equivalents (measures used to compare emissions from various greenhouse gases based on their global warming potential).
Praedicat CEO Robert Reville asked Grossman directly if the scientific evidence of attribution would be much more likely to pass evidence hearings and be able to be presented to a jury. “Absolutely,” Grossman said.
“Probably the best proof of this is the fact that the recent report of the Intergovernmental Panel on Climate Change used attribution science everywhere. So, for a respondent, arguing that the science of attribution is theoretical and not accepted no longer really holds up. At least that would be a very difficult argument to make.
This article was first published in the Insurance Journal’s sister publication, Carrier Management.
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