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Nuisance

By:
Edward A. Reid Jr.
Posted On:
Aug 4, 2020 at 3:00 AM
Category
Climate Change

DISCLAIMER: I am not an attorney and I did not sleep at a Holiday Inn Express last night.

Several California cities and counties filed nuisance lawsuits in state courts against major oil and gas companies based on their production and promotion of their products. The stated intent of the lawsuits is not to end the nuisance, but rather to seek funding to assist the plaintiffs to adapt to sea level rise caused by the use of the fossil fuels produced and sold by these companies. The companies had the suits transferred to the federal courts on procedural grounds and then moved to have the suits dismissed. The United States Court of Appeals for the Ninth Circuit recently ruled that the various lawsuits could proceed in the state courts, though it is highly likely that the cases will return to the federal courts on appeal, regardless of the outcome in the state courts.

The operations of these companies in the State of California are licensed and regulated. These operations were not previously viewed as nuisances as: state, county and local agencies built and maintained roads for use by vehicles fueled with these companies products; approved production and refinery capacity to produce the products and transmission and distribution pipeline facilities to deliver the products; approved residential, commercial and industrial buildings and facilities which would use these products for a variety of applications; and, taxed the facilities and the products they produced, refined, delivered, sold and used.

The lawsuits were filed in response to climate model projections of rapid, dangerous sea level rise in the future, which would require the plaintiff jurisdictions to expend massive adaptation funding. There are several significant issues regarding the basis of the lawsuits.

Tide gauge measurements of sea level rise began in the 1850s, approximately 100 years before the widespread use of fossil fuels is believed to have begun influencing global climate. There is no indication of an acceleration of the rate of sea level rise over that 170 year period; and, therefore, no basis on which to assert that the widespread and rapidly growing use of fossil fuels beginning in the mid-20th century contributed to sea level rise. Satellite measurement of sea level began in 1992. The satellite measurements of the rate of sea level rise are roughly twice the rates measured by tide gauges, but there is no indication of an acceleration of the rate of rise in the satellite data. The discrepancy in the rates of rise is currently unexplained.

The models used to project future rates of sea level rise are currently unverified and have demonstrated no predictive ability. Therefore, there is no certainty that the potential future effects of sea level rise to which the plaintiffs assert they would be required to adapt would actually occur.

Finally, if the use of fossil fuels were contributing to sea level rise, that contribution would be the result of the use of all fossil fuels globally, not merely the use of oil and gas consumed in the State of California and marketed and sold by the defendants in the California lawsuits.

“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell” - Carl Sandburg