Richmond officials see perfect timing, little downside in suing fossil fuel companies

When Richmond’s city council members voted unanimously to pursue a lawsuit accusing over two dozen fossil fuel companies of knowingly contributing to global warming, they knew it would put their already-strained relationship with Chevron, the city’s biggest employer, back in the public crosshairs. However, according to city officials, the timing and price tag of the suit made the decision simple.

On January 22, Richmond announced in a press release that it would be taking on Chevron, BP, ConocoPhillips, Exxon, Shell and 24 other petroleum and coal companies in Contra Costa Superior Court. The lawsuit makes Richmond the ninth city to take legal action against the fossil fuel industry, following on the heels of Oakland, San Francisco and New York City.

The lawsuit claims that petroleum and coal companies have known for nearly 50 years that the production and use of fossil fuels leads to global warming and rising sea levels that threaten coastal communities. But, rather than listening to their own scientists, these companies “concealed the dangers, sought to undermine public support for greenhouse gas regulation, and engaged in massive campaigns to promote the ever-increasing use of their products at ever greater volumes,” according to the text of the suit.

“By this action, the City seeks to ensure that the parties who have profited from externalizing the responsibility for sea level rise, drought, extreme precipitation events, heatwaves … bear the costs of those impacts on the City, rather than Plaintiffs, local taxpayers, residents, or broader segments of the public,” the suit continues.

The litigation is being led by San Francisco-based Sher Edling, the same law firm that is representing San Mateo and Marin counties, along with the cities of Santa Cruz and Imperial Beach, in similar suits. Richmond City Attorney Bruce Goodmiller first approached Sher Edling to inquire about climate litigation.

Richmond mayor Tom Butt said that while the intention of the lawsuit falls in line with the policy positions of the city, that fact that Sher Edling was willing to partner with the city attorney’s office and bear the brunt of the costs was the most important factor in the decision.

“We had an opportunity to work with a law firm on this without any significant cost to the city,” he said. “There’s no downside for the city in this at all, but there’s a tremendous upside.”

City councilmember Melvin Willis said he couldn’t discuss the specifics of the vote because it was held during a closed session, but that a yes vote made sense given the information presented by the attorneys. “[The lawsuit] seemed solid enough and it made sense to jump on it,” he said. “Why wouldn’t we if this is what other cities are doing and these are our communities being impacted?”

Unlike the suits filed by Oakland and San Francisco, which named only the five large oil companies, Richmond’s suit targets 24 fossil fuel companies that currently have, or had at one point, substantial business interests in California. It also names several trade associations and industry groups.

Richmond’s attorneys argue that the city is at particular risk of suffering from the adverse effects of climate change and rising sea levels due to its location on a peninsula. “With 32 miles of shoreline, more than any other city on San Francisco Bay, Richmond is at extreme risk from sea level rise,” Butt said in a statement. “We have two rail lines, 3,000 acres of public waterfront parks, vulnerable neighborhoods, two wastewater treatment plants, and a refinery, all subject to inundation.”

“Sea level rise is already affecting our long-term planning and will cost our community far more than any foreseeable resources we have to mitigate it,” the mayor’s statement continued.

The lawsuit specifically cites data from a variety of sources, including the Federal Emergency Management Agency and the Bay Conservation & Development Commission, that points to Richmond being vulnerable to inundation due to rising sea levels that will increase the damage caused by floods and extreme tides. Maps of the potential flood zones show that neighborhoods like Atchison Village could be at risk, along with much of Richmond’s marshland.

It also cites drought, heat waves and extreme precipitation as potential effects from climate change that could have an effect on the city.

The Richmond lawsuit, like the others that have been filed, is novel in that is does not seek a set amount in damages. Rather, it hopes to shift the cost of future damages away from taxpayers and onto the fossil fuel companies. Lindsay said that the city is currently in discussion about how to undertake the process of valuing at-risk land and assets.

In response to the lawsuits, a handful of the companies named have charged that these actions are politically motivated and stall the discussion on climate change.

“As we have said previously, such lawsuits will do nothing to address the serious issue of climate change,” Chevron officials said in a statement released after Richmond announced its lawsuit. “Reducing greenhouse gas emissions is a global issue that requires global engagement.”

Representatives from Chevron and several other companies named in the suit did not respond to requests seeking comment.

When asked about Chevron’s statement, Willis questioned the company’s motivations.

“I mean, buying up a bunch of billboards around the city with great, positive messaging, but also Chevron’s logo, that doesn’t really do anything to move forward talks on climate change,” he said. “Because how are you investing that money into actual climate change, instead of investing in advertising and PR?”

In an attempt to discredit the California lawsuits, oil giant Exxon Mobil went on the offensive in January, filing a 60-page petition claiming it is the subject of a conspiracy. The petition, filed at a district court in Tarrant County, Texas, aims to allow the company to depose California government officials and seize internal records, in order to prove a pattern of abuse.

Chevron has also attempted to entangle oil companies that have not been named in the lawsuits, arguing they also play a role in the production and marketing of fossil fuels. In December, Chevron filed a third-party complaint against Statoil, a state-owned Norwegian company, seeking to have it added to the California suits.

No petitions have been filed by the fossil fuel companies against Richmond so far, but Butt says the threat of legal action against the city is expected. “Almost everyone who gets sued ends up counter suing,” he said. “This is just the way it goes. I’m not worried about it.”

Richmond’s attorneys filed seven different claims in the lawsuit, including public nuisance, negligence and trespassing, arguing that the defendants’ production of fossil fuels, and simultaneous denial of climate change, has caused the city injury.

The lawsuit is largely based on memos and research from Exxon Mobil’s own scientists that shows company officials knew about the harmful effects of fossil fuels as far back as the 1970s, but attempted to stop the information from becoming public, and to discredit climate science. These previously unseen documents were discovered in a 2015 investigation by InsideClimate News.

While the recent climate change lawsuits have captured public and industry attention, they are not the first litigation of their kind. According to a review conducted by the United Nation Environment Program, over 600 lawsuits alleging damages due to climate change have been filed in the United States. These lawsuits have all failed to substantiate their claims of injury to the plaintiffs involved.

Where the current California cases — as well as a similar one filed in New York City — differ is they’ve been filed in state courts, rather than federal. The attorneys in these lawsuits are also arguing very narrow claims, such as public nuisance, that a local court may be more likely to hear.

Fossil fuel companies have pushed for these cases to be to argued federal courts, a move that the plaintiffs’ attorneys have resisted. In the past, these companies have had success fighting off climate change liability claims in federal venues.

Sher Edling and Goodmiller argue they have the standing to pursue this case in Contra Costa County Superior Court because it is based on injury that is occurring within the county, and because one of the defendants, Chevron, maintains its corporate headquarters in the county.

While the legal standing Richmond is claiming in this case is in part tied to the county’s relationship with Chevron, Butt says this lawsuit is not about the city council going after the company. “Chevron is an important corporate citizen in Richmond,” he said. “They pay about 25 percent of our total general fund and since the 2012 fire, they’ve been a pretty good neighbor. … This is not about the city taking on Chevron, this is about the city taking on the entire fossil fuel industry.”

Correction: An earlier version of this story stated that Sher Edling first approached Richmond with the idea of climate litigation, due to an incorrect statement by City Manager Bill Lindsay. Richmond City Attorney Bruce Goodmiller first made contact with Sher Edling about the lawsuit.