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Damage related to climate change will only grow — who's liable?

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California Wildfires
A fire truck drives through an area burned in the wildfire in November 2018 in Paradise, Calif. Five days after flames all but obliterated the Northern California town, officials were unsure of the exact number of missing. But the death toll was almost certain to rise.
John Locher | AP Photo 2018

Climate change liability — It’s a term you’ll be hearing in the coming years, as damages attributed to climate change continue to grow. But how will lawyers and the courts assess liability in this new territory?

“In some ways, these are new lawsuits but they are sort of in a long line of other lawsuits that deal with these types of harm,” said Alexandra Klass, who teaches environmental and property law at the University of Minnesota Law School.

She said state and local jurisdictions who are suing fossil fuel companies for damages related to climate change — think hurricane and wildfire recovery, or updating storm water and transportation systems — are using the same sections of law Minnesota and Lake Elmo used in lawsuits against tobacco companies and 3M. 

“Public nuisance is an old common law theory. It basically says that if someone has engaged in conduct that harms the public, it’s either a state or local government, for the most part, who then brings action on behalf of the public,” Klass said.

While the public has used an benefited from gas and oil, the lawsuits rest on the fact that fossil fuel companies knew the impacts their products would have on the climate and sought to hide it.

“[The defendants] will say that fossil fuels have been used by the public and by the same state and local governments to power the economy and drive our cars. They’ll also say they’re not responsible for damages,” Klass said. “They are also arguing that the way to deal with this is through legislation, not litigation, and that we should provide a carbon tax and sort of move forward.”

How these cases, particularly a Rhode Island case against Chevron, play out will help lay the groundwork for sorting out liability in the future, Klass said. But she expects most litigation will remain at the hand of governments.

“It’s very difficult for individuals to have the ability to bring lawsuits, whether it’s against the power companies or oil and gas companies, which I think it why state and local governments have stepped in here,” Klass said.

To hear more of the conversation, hit play on the audio player above.