By Leah S. Poniatowski, J.D.
City’s complaint pins blame for infrastructure and related damages arising from climate change on fossil fuel industry entities’ alleged failure to warn of greenhouse gas dangers.
Honolulu, as both city and county, filed a lengthy complaint against several American, English, and European fossil fuel corporations and industry organizations, alleging that they had knowledge of the negative environmental effects that extraction and consumption of fossil fuels could cause but concealed those risks and engaged in practices to misinform the public, which has caused numerous environmental changes seriously impacting the city’s infrastructure, economy, and residents’ quality of life (City and County of Honolulu v. Sunoco LP, March 9, 2020).
The Great Acceleration. Beginning in the 1950’s, the extraction, sale, and consumption of fossil fuel products "exploded," leading to the release of greenhouse gas emissions never before recorded. According to the complaint, during this "Great Acceleration," three-fourths of all industrial carbon dioxide emissions in history occurred and their rate has continued to expand since the 1990s. Also during this period, scientists regularly expressed concern to the fossil fuel industry about the environmental impact posed by increases of greenhouse gases, the city contended. The city stated that the effect of these gases would lead to a rise to the Earth’s surface temperature, leading to rising sea levels, which in turn cause flooding, increased erosion, more frequent and more intense storms, saltwater intrusion, ocean acidification, and alterations to local ecosystems, among other negative impacts.
Corporations and organizations at issue. The city named as defendants to its suit: Sunoco LP, Exxon Mobil Corp., Royal Dutch Shell PLC, Chevron Corp., BHP Group Ltd., BHP Group PLC, BP P.L.C., Marathon Petroleum Corp., and Conoco Phillips, as well as all those companies’ related entities and affiliates. Also named were American Petroleum Institute, the Western States Petroleum Association, the American Fuel and Petrochemical Manufacturers, the U.S. Oil & Gas Association, the Western Oil & Gas Association, the Information Council for the Environment, and the Global Climate Coalition.
Alleged conduct. The city alleged that despite having been fully informed by researchers and scientists of the harm posed by unrestricted extraction and consumption of fossil fuels, the defendants engaged in coordinated efforts to undermine regulation and misinform the public regarding the risks the industry posed to the environment. In addition to profiting greatly from the increased consumption, the defendants did not work to mitigate the impacts or otherwise warn consumers of the harm despite internally demonstrating their own belief and knowledge of the impact greenhouse gases posed, the city claimed. Moreover, the delays in curbing these emissions increased both the harm from the changes to the environment, and the cost to curtail damage to Honolulu and its residents.
Honolulu’s injuries. The city stated that it has experienced injuries arising from climate change, specifically damage to city facilities and property "critical for operations, utility services, and risk management, as well as other assets that are essential to community health, safety, and well-being." Additionally, the city stated that its tourism- and ocean-based economy have been injured in part to lost tax revenue and increased public health costs.
Failure to warn. The city alleged both strict liability and negligent failure-to-warn claims in its complaint. The city contended that the entities knew or should have known by virtue of "information passed to them from their internal research divisions and affiliates" and others of the effects from the "normal use and operation of their fossil fuel products," that this information rendered their fossil fuel products to be dangerous when used as intended or in a reasonably foreseeable manner, that the entities breached their duty of care when they failed to warn consumers or others of the inevitable climate effects from use of their products, and that they actively worked towards preventing "reasonable consumers from recognizing or discovering the latent risk" posed by their products.
The city maintained that this conduct directly and proximately caused injuries to the city and foreseeable harm, and that the entities’ actions are indivisible because greenhouse gases bear no markings and naturally commingle in the atmosphere. Further, the city alleged that the entities’ acted with actual malice, demonstrated by their actual knowledge of the defects and dangers posed by use of fossil fuels, the lack of warnings of those dangers, and their conscious disregard for the "probable dangerous consequences" from fossil fuel consumption. The city also alleged public and private nuisance, and trespass claims.
The case is No. 1CCV-20-0000380.
Attorneys: Victor M. Sher (Sher Edling LLP) for City and County of Honolulu.
Companies: City and County of Honolulu; Sunoco LP; Aloha Petroleum Ltd.; Aloha Petroleum LLC; Exxon Mobil Corp.; Royal Dutch Shell PLC; Shell Oil Co.; Shell Oil Products Co. LLC; Chevron Corp.; Chevron U.S.A. Inc.; BHP Group Limited; BHP Group plc; BP P.L.C.; BP America Inc.; Marathon Petroleum Corp.; ConocoPhillips; ConocoPhillips Co.; Phillips 66; Phillips 66 Co.; American Petroleum Institute; Western States Petroleum Association; American Fuel and Petrochemical Manufacturers; U.S. Oil & Gas Association; Western Oil & Gas Association; Information Council for the Environment; Global Climate Coalition
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