New Jersey cites remnants of Superstorm Sandy in new climate lawsuit

New Jersey on Tuesday threw its weight behind a growing effort by local governments to hold oil and gas companies financially accountable for allegedly lying to consumers about the fossil fuel industry’s role in accelerating climate change.

The Garden State case — one of two dozen climate liability lawsuits filed by cities, states and counties across the country — comes as the Supreme Court weighs two industry petitions seeking to overturn the liability suits. It also comes almost exactly 10 years after Superstorm Sandy made landfall in New Jersey, killing 38 and leaving more than 300,000 homes damaged.

Attorney General Matthew Platkin (D), who filed the case in the New Jersey Superior Court, said while announcing the case that New Jersey would have been better prepared for the storm if the fossil fuel industry had not played down the risks of burning fossil fuels.

“We could have taken actions that would have mitigated or even eliminated many of the risks of climate change, including the spread of dangerous storms like Sandy,” Platkin said. “Today we begin to right the wrongs done to our residents by companies that willfully chose profits over our global environment and the well-being of our residents.”

The New Jersey case alleges that the American Petroleum Institute — along with Exxon Mobil Corp., Shell PLC and others — violated the state’s consumer fraud law by withholding information and misleading the public about climate change.

The complaint seeks compensation for the loss of wetlands and other costs of addressing climate change, along with punitive damages, because the industry’s conduct, the lawsuit alleges, “demonstrates a reckless or willful disregard for the rights of the state and its residents , and was done with actual malice.”

The New Jersey case joins a number of challenges by mostly Democratic-led governments seeking to hold oil and gas companies accountable for making and selling products that have contributed significantly to atmospheric greenhouse gas emissions and rising global temperatures. In New Jersey, the city of Hoboken filed its own consumer fraud lawsuit against the industry in 2020 (Greenwire2 September 2020).

Local officials say energy companies should be on the hook for wildfires, floods and other climate-induced disasters that plague cities, counties and states across the country.

The Producer Accountability Project, an initiative of the National Association of Manufacturers that opposes the liability lawsuit, said the New Jersey lawsuit will do nothing to address climate change and is “a costly distraction from the important work, which must be done’.

“This lawsuit has no legal merit, which is why it’s already been thrown out by the federal courts,” said Phil Goldberg, the group’s special counsel, referring to a similar lawsuit from New York that was filed in federal court. “Courts are simply not the right place to make decisions about climate policy. They fail to take into account important aspects of America’s energy policy, including affordability for families and businesses and energy security.

Federal courts have distinguished between New York’s failed climate challenge and cases like New Jersey’s, which are filed in state courts and involve violations of state laws. The question of which courts – state or federal – should have jurisdiction in climate liability litigation has stalled the cases.

The Supreme Court may soon choose to rule on the procedural issue again after handing a small victory in 2021 to oil and gas companies that believe local governments’ claims will be thrown out in federal court (ClimatewireOctober 18).

Goldberg said New Jersey should instead focus on working with growers to address climate change.

“The Biden administration has provided billions of dollars in funding through federal programs to help communities like those in New Jersey deal with the impacts of climate change,” Goldberg said. “It’s time to move on from this side-splitting lawsuit and focus on real solutions.”

Chevron Corp.’s attorney. Theodore Butrus, a partner at Gibson, Dunn & Crutcher LLP, called the lawsuit “a distraction from the serious problem of global climate change, rather than an attempt to find a real solution.”

New Jersey, like many of the challengers in climate liability cases, has hired the California-based law firm Sher Edling LLP as outside counsel. Butrus said that “like others in the series brought by the same private plaintiffs’ attorneys, this is a special interest case that asks the New Jersey Supreme Court to punish a select group of energy companies for a problem that resulted from conduct on a global scale stretching back to the beginning of the industrial revolution.

He said Chevron believes the claims are “legally and factually unfounded and will prove that in court. In the meantime, Chevron will continue to work with other public and private sector stakeholders to create real solutions to global climate change.”

Platkin argued that even though the companies lied to the public about climate change, they took steps to protect their own investments from risk, including raising offshore drilling rigs to account for sea level rise.

“They did things that governments and our residents could and would have done if we had been properly warned earlier,” he said. “It is long past time for these betrayals of their clients and the public to end and for the perpetrators of these lies to pay for their behavior and for the people of New Jersey to receive restitution for all they have lost.”

Sean Latourette, New Jersey’s commissioner of environmental protection, said the state is “ground zero” for some of the worst effects of climate change. He said New Jersey faces twice the risk of sea level rise than most other places.

“Our communities and our environment are constantly recovering from extreme heat from devastating floods, from droughts,” Latourette said, adding: “I hate to be miserable. It only gets worse from here.”

Reprinted from E&E news with permission from POLITICO, LLC. Copyright 2022. E&E News provides important news for energy and environmental professionals.