The Climate Litigation Wave Crashes Into Hawaii’s Supreme Court

Such lawsuits abound, with as many as 300 cases underway. Honolulu’s, though, has a twist.

by Jordan McGillis, Spectator, June 20, 2023, 11:05 PM

Honolulu is waging lawfare against Big Oil. In a suit the city filed against a who’s-who of oil producers, Honolulu alleges that the companies “individually and collectively played leadership roles in denialist campaigns to misinform and confuse the public” and “obscure[d] the role of [their] products in causing global warming and its associated impacts.” Honolulu further alleges that “as a direct and proximate consequence of Defendants’ wrongful conduct, the average sea level will rise substantially along the City’s coastline, causing flooding, erosion, and beach loss.” The plaintiff concludes that the oil companies “are directly responsible for a substantial portion of the climate crisis-related impacts in the City” and brings action against them for public nuisance, private nuisance, strict liability for failure to warn, negligent failure to warn, and trespass; it seeks compensatory damages, equitable relief, abatement of the nuisances, attorneys’ fees, punitive damages, disgorgement of profits, and costs of the suit.

Though Honolulu’s case, now before Hawaii’s Supreme Court, is the furthest along, such lawsuits abound, with as many as 300 climate litigation cases underway in the last year, according to Sabin Center and Climate Change Laws of the World databases. The lawsuits mostly sit upon a common three-legged stool alleging dishonesty, climate-related damage, and attribution of that damage. While each of the stool’s legs has something to it, not one holds firm in the end.

The first claim is the least sophisticated, having been reduced to the social media hashtag accusation #ExxonKnew. Honolulu’s case uses boilerplate language to that same effect, arguing that the defendants have engaged in a plot to “conceal and deny their own knowledge” for “decades.” As Robert Bradley, founder of the Institute for Energy Research and himself an energy industry veteran, explains, it is not nearly so simple. While some scientists in the employ of companies like Exxon were engaged in research on the climate effects of fossil fuels decades ago, that does not mean that the decision-makers within the companies held that information as operable knowledge. “The company itself was agnostic, with good reason,” Bradley wrote last year. “Climate science was embryonic and in flux, with different participants arguing different things for an opposite net effect. In the 1970s, global cooling was feared by scientists such as Stephen Schneider, deputy head, Climate Project at the National Center for Atmospheric Research.” We forget this now amid a steady stream of warming research, but back then presses published books with titles like The Cooling: Can We Survive It? and Ice Age: Solving the Mystery. To expect companies to have acted on early research, even if submitted by their own scientists, is unreasonable.

We now have more certainty about the greenhouse effect. Gases emitted when we use fossil fuels have a warming impact on the planet. Honolulu homes in on one of the big downstream effects of that warming, sea level rise, which results from factors including melting polar ice and water’s thermal expansion. Indeed, sea level rise presents costly challenges, requiring adjustments to how we build and manage public and private property on the coasts. Given its island location, that is definitely relevant to Honolulu. According to state data, the ocean is creeping about an inch higher every four years. With some acceleration, this could add about a foot of sea level rise by 2050 to Hawaii’s shorelines.

But with sea level rise, more is at play than melting ice and thermal expansion. The Hawaiian Islands are unique — they are furthest island chain from a continent on the planet. Volcanic and geologic activity make forecasting the particular effects of the sea on the islands’ coastlines a complicated endeavor. According to the U.S. Geological Survey, while the Big Island is subsiding at a rate of 2–3 millimeters per year, Oahu (home to Honolulu) is rising, showing the “greatest uplift” of any Hawaiian island. In other words, some sea level rise is counteracted by the island’s own movement in the same direction, complicating how we ought to adjudicate claims of climate damage that occur incrementally over time. Science performs a crucial informative function on climate change, but it does not determine the proper course of public affairs, like how we assess warming-related sea level rise and its effects on coastal property. That’s a legal and, arguably, a political question.

Finally, the attribution leg of the stool is even weaker. Honolulu casts a wide net over the oil majors, naming Sunoco, Exxon, Chevron, Shell, BHP, BP, Marathon, and ConocoPhillips as the parties “directly responsible” for “a substantial portion” of sea level rise. This is doubtful. The most obvious, if pedantic, rebuttal is that these companies don’t directly emit that for which the suit alleges they are “directly responsible.” Rather, they sell products to customers who then use the products that emit greenhouse gases. The larger point is that even incorporating the emissions from their customers, these big companies account for just a small portion of the 2.5 trillion tons of greenhouse gas emissions that humans have generated since the dawn of the industrial age. 

While these big names are convenient targets, they’re no longer the dominant players they once were. The biggest oil companies by revenue are now Sinopec, PetroChina, and Saudi Aramco. Even if successful, this suit wouldn’t cost these latter-day giants a dime. What’s more, the main fossil fuel historically has been coal. While oil is the largest single energy source used today, coal is just behind at roughly a 5:4 consumption ratio by energy content. The lawsuit targets North American and European companies, but about a third of historic emissions have come from Asia and Africa. Moreover, countries in these places are still on the upward emissions trajectory. China, which gets the vast majority of its electricity from coal and is approving two new coal-fired power plants each week, emits twice the greenhouse gas that the U.S. does and will pass the U.S. in historic emissions by 2050. In light of coal’s continued prominence and the declining relative significance of North American and European oil producers in the global economy, Honolulu’s pinning of the alleged climate damages that Honolulu will experience onto a handful of oil companies doesn’t make much sense. Thus, like the others, this climate litigation case crumbles.

The Twist in Honolulu’s Litigation

Honolulu v. Sunoco, however, has a twist that makes it stand out from the general climate litigation wave. As reported by the Daily Caller, the chief justice of Hawaii’s Supreme Court, Mark Recktenwald, has worked with an environmental group that has a degree of overlap with the plaintiff’s attorneys at Sher Edling. On May 9, Recktenwald disclosed that he engages in “educational presentations relating to environmental, energy, and natural resource issues” with a nonprofit called the Environmental Law Institute, a group whose funders overlap with those of Sher Edling, the attorneys representing Honolulu in the case before Recktenwald and the Hawaii Supreme Court.

The question being debated now is whether Recktenwald’s impartiality is compromised. Though we are not privy to the oral components of his presentation with the Environmental Law Institute, Recktenwald’s slides (which he made publicly available with his disclosure statement) indicate a good-faith effort to educate fellow judges about the legal terra nullius of climate change. Recktenwald’s slides indicate that he thinks deeply about the questions at hand, including how, for example, the remapping of coastlines might change property claims and whether private property owners can build sea walls.

Barring further revelations, it is the timing that flirted with impropriety. Honolulu filed its suit in March 2020; Judge Recktenwald presented before the National Judicial College on April 4 of this year, less than three weeks before the U.S. Supreme Court denied cert to Sunoco. Further, Recktenwald discloses that on June 20 he will present in a similar venue on “Environment, Energy and Natural Resource Disputes.” These are important topics and certainly ones of great interest to judges as these cases multiply. But is the chief justice of the Hawaii Supreme Court, where one of these cases is being adjudicated, the right person to do the educating? 

John Tamny thinks not. Writing at Forbes, Tamny delivered an important warning about climate litigation last month. Tamny persuasively argues that the Supreme Court’s April decision to not weigh in on routine climate change lawsuits brought against oil companies increases the odds of “friendly judge shopping” at the state level. He sees Recktenwald as one such friendly judge.

Be that as it may, Honolulu v. Sunoco presents a now-standard case, with the plaintiff alleging that the defendants are responsible for damage from rising sea levels because #TheyKnew about global warming and yet continued to supply the market with their commodities. On its merits, the case is weak. It’s an odd distortion to describe a corporation as having possessed knowledge. Additionally, to attribute forecast sea level rise–related damage to these specific companies is not credible. Hawaii Chief Justice Mark Recktenwald got it right earlier this year when he said, “Our core mission is to decide cases fairly and impartially in accordance with the law.” In Honolulu, he has a chance to affirm that mission.

---30---

2023: Rectenwald Worked With Environmental Group Tied To Oil Plaintiffs’ Lawyers