Climate lawsuits against energy giants will have 'difficult' time, prof says

A new series of lawsuits may have a tough time proving major energy companies helped cause and cover up climate change — but they have a better chance now than ever, a University of Calgary environmental law professor says.

Oil producers are accused of spreading false information as tobacco companies did

Encana Corporation's Deep Panuke project drills for natural gas off the coast of Nova Scotia. Encana faces lawsuits alleging it purposely spread misinformation casting doubt on climate change. (SBM Offshore)

A new series of lawsuits may have a "difficult" time proving major energy companies helped cause and cover up climate change, but they have a better chance now than ever, a University of Calgary environmental law professor says. 

Calgary energy giant Encana is one of the 20 multinationals being sued by three California counties that face big bills to mitigate sea level rise, shoreline erosion, flooding and storm damage now happening and expected to worsen.

The companies all have connections to the U.S. state, and together are alleged to have created roughly 20 per cent of the emissions in the last 50 years and to have purposely spread misinformation casting doubt on climate change.

The cases draw on precedents set in the battle against the tobacco industry, which was found liable for the damage caused by smoking.

Professor Martin Olszynski spoke to Calgary Eyeopener host Jennifer Keene earlier this week about his research on that connection. This interview has been edited and condensed for length and clarity.

Q: Cases like these have been brought forward. They've been tried before. What's happened with that?

A: Partly, those cases were brought 10, 15 years ago. Although the science seemed fairly established by that point in some circles in some sectors, in other cases it really wasn't quite there in terms of popular understanding. So judges would have faced those issues as well, sort of a little bit of disbelief.

It's also some very technical stuff. Obviously, this was all happening in the United States. So they have a doctrine there that's a little bit different from what we have in Canada in terms of if there is federal legislation on a topic, then that almost precluded some of these cases.

What's happened since then? A few things. One is that of course if you have a new administration in the United States that's not as gung-ho, let's say, as the previous one in terms of dealing with this issue, and the fact that we're in, I've heard some describe it as negative territory, in a sense.

They're also being very clear in saying, 'You knew. You've known about this. You've known about this for 50 years.'- Martin Olszynski , law professor

The science of climate change in that time has become that much stronger.

Probably the last thing, and this is where the connection to analogies with tobacco seems to come, is that the pleadings are different in this case.

They're not just, "You emitted this pollutant and therefore we're suing you," in what is sort of the traditional lawsuit, public nuisance, interference with our public rights.

But rather, they're also being very clear in saying, "You knew. You've known about this. You've known about this for 50 years and instead of doing something about it proactively, you instead engaged in a sort of campaign — and in fact, was done in tobacco. You failed to warn consumers adequately about the risks of your products."

Q: Do you think they have a chance with a case like that?

A: Most observers say that these are still very difficult cases. They challenge a lot of the sort of conventional, traditional doctrines and rules that apply in these kinds of cases.

To have liability, you have to be found by law having contributed to or caused the harm. It's maybe not as much of a stretch but it's still pretty hard to say, "These 20 companies." There's still lots of hurdles. It would be foolish to understate those.

But at the same time, this is an iterative process. What we're seeing is that, with every case that comes forward, and there are maybe half a dozen now, they learn from previous efforts and they adapt and change.

Q: I understand the parallels between tobacco and oil companies, that you knew of the risk but you didn't do anything to make this better. But at the same time, smoking tobacco was a choice, and really, using energy, you could argue, isn't a choice that most people have in the 21st Century.

A: The question is, at what point, in light of the risk, was it incumbent on some of these manufacturers to start thinking about alternatives, to start moving more aggressively towards renewables or carbon technologies like carbon capture storage.

Absolutely, no one I think would argue against the utility, and in fact, the plaintiffs acknowledge that because it's part of the analysis here. Of course energy has lots of utility.

But at what point was it incumbent on these companies to really switch gears in a bit of a more aggressive way, not only for themselves in terms of their own technology, but also in terms of regulation?

Part of what they detail is these long efforts to delay any kind of government action on this issue.

With files from the Calgary Eyeopener