‘Tipping point’: Asbestos, opioid lawyers enter climate fray
These lawyers have won big against asbestos and opioid manufacturers. Now, they’re coming for oil and gas companies.
In the past nine months, four law firms that specialize in corporate wrongdoing have filed lawsuits against oil and gas majors on behalf of local governments seeking compensation for the ravages of climate change. The filings signal that climate liability litigation — once mostly the domain of environmental firms and government attorneys — is drawing attention and resources from new corners of the legal industry.
“Climate litigation is increasingly seen as a commercially viable practice as legal pathways clear and the evidentiary base continues to grow,” said Benjamin Franta, a senior research fellow and founding head of the Climate Litigation Lab at the University of Oxford.
Franta added that U.S. climate liability challenges — which date back to 2018, when three Colorado communities sued oil companies to pay up for the impacts of a warming planet — “may be approaching a tipping point as commercial firms with significant resources enter the field.”
Climate liability lawsuits recently received another significant boost, after the Supreme Court in April rejected the oil industry’s attempt to derail the roughly two dozen cases that have been filed across the country.
Previously, with a few exceptions, climate liability lawsuits have been mostly handled by the California-based law firm Sher Edling LLP, nonprofit environmental groups and attorneys general offices in mostly Democratic cities and states.
But one of the latest suits was filed by California-based Worthington & Caron PC, which has specialized in asbestos cancer cases. Texas- and Oregon-based personal injury firms Simon Greenstone Panatier PC and Thomas, Coon, Newton & Frost have also joined the fray.
All three represent Oregon’s Multnomah County, which last month became the latest municipality to file a climate liability lawsuit, blaming a deadly 2021 heat wave in part on the fossil fuel industry. The law firms’ fees will be contingent upon the outcome of the case.
All together, climate liability suits nationwide have the potential to put the fossil fuel industry on the hook for hundreds of billions of dollars — if the cases are successful.
Simon Greenstone Panatier founding shareholder Jeffrey Simon distinguished the Oregon lawsuit from other climate liability cases.
Multnomah County’s lawsuit, he said, is different because it focuses on a specific “unnatural weather event” rather than global warming generally. Portland’s heat wave, he said, was entirely anomalous.
“We have always had hurricanes, even before the Industrial Age,” Simon said. “What we didn’t have is 116 degrees in Portland, Ore.”
Simon said the firms were preparing the Oregon case well before the Supreme Court declined to take up the oil industry’s bid to quash the climate liability lawsuits. And he questioned whether the high court’s decision — which cleared the way for the cases to proceed in state court, against oil companies’ wishes — would prompt involvement from more lawyers outside of the environmental realm.
“The plaintiffs’ bar should be circumspect about that,” he said, adding that “not all harmful weather events can be directly linked to anthropogenic climate change, although many can.”
But Pat Parenteau, emeritus professor at Vermont Law and Graduate School, said the Supreme Court’s move — which could accelerate how quickly the climate liability cases get to trial — could eventually pique the interest of law firms that traditionally focus on toxic torts and corporate malfeasance.
He noted the lawsuits are “incredibly expensive to litigate” but that large firms can finance them with prior settlements.
“They are willing to take risks,” Parenteau said, “but only when they see a decent chance of winning with a big upside on damages — as in high seven figures.”
From opioids to oil
Simon said he got involved in Oregon’s climate case when a fellow attorney who had fought the asbestos industry in cancer cases told him that Multnomah County officials were looking for legal representation.
Around that time, Simon was securing a $1.9 billion opioid settlement with Johnson & Johnson and other pharmaceutical companies in Texas. After months of researching the Oregon heat dome that killed 69 people, he was convinced: “There is a very straightforward cause of action here.”
He said Portland has had a traditionally mild climate “and simply didn’t have the infrastructure and emergency response systems for that kind of heat catastrophe.”
The suit charges that the heat was a “direct and foreseeable consequence” of the oil and gas industry’s decision to sell as much fossil fuels as it could while misleading the public about the effects of burning them.
Simon called it a “classic tort, the intentional creation of a public nuisance, clear negligence and a very compelling case for fraud.”
Like Oregon heat wave case, the most recent climate liability lawsuits are tied to particular events.
More than a dozen municipalities in Puerto Rico sued the oil industry in November, seeking compensation for the 2017 hurricane season that killed thousands and left much of the island without power for nearly a year. The local governments are represented by class action consumer protection law firm Milberg Coleman Bryson Phillips Grossman LLC.
Milberg partner Marc Grossman said at the time of the lawsuit that its lawyers were “investigating claims by municipalities all over the world.” The firm did not return requests for comment.
New Jersey filed its own lawsuit against the oil industry last October, invoking the 10th anniversary of Superstorm Sandy, which killed 38 and left more than 300,000 homes damaged. State Attorney General Matthew Platkin (D) filed the case, with Sher Edling as special counsel.
The oil industry has denounced the climate liability lawsuits as a waste of money and a distraction from efforts to address rising global temperatures. Companies have sought for years to move the cases from state to federal court, where they believe they are more likely to prevail, arguing that emissions are already regulated under the federal Clean Air Act and cannot be subject to state-based claims.
Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, which opposes the lawsuits, didn’t address the involvement of new law firms in climate litigation.
But he said the group shares “the communities’ goal of making a meaningful difference in climate change.” However, the solution is “to innovate new ways to source and use energy that reduce emissions, not create ways to file lawsuits that would divert a significant amount of the American people’s resources to plaintiffs’ lawyers,” he said.
He said Supreme Court precedent indicates that the cases raise national issues that belong before Congress and EPA, not the courts.
“That remains true today,” he said, “and we are confident that once the courts assess the cases for themselves, they will see that addressing climate change is not about assigning state liability but facilitating national innovation.”
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