Climate Change Lawsuits and Coastal Plans — Where Does San Diego Stand?

By Stephanie Corkran / SanDiego350
Originally published by the San Diego Free Press on October 27th 2017

San Francisco, Oakland, San Mateo, Marin and Imperial Beach are suing fossil fuel companies over the sea level rise and expected property damages to homes and businesses. The claims cite increased cost of infrastructure, emergency response, coastal flooding and extreme storms. Danger to health and the obstruction of free use of property and free passage of waterways and parks is included.

Does San Diego have a plan to secure the funds needed to respond to climate change? Other jurisdictions have filed climate change lawsuits against fossil fuel companies to secure such funds.

During a telephone conversation with Mayor Dedina of Imperial Beach, I asked if San Diego should join in filing a climate change lawsuit against fossil fuel companies. He responded:

“San Diego is not in a position to do so because the preliminary work of climate change impact projections and cost estimates has not been done. San Diego would first need to develop a local coastal plan like Imperial Beach and others have done before filing for the lawsuit to be credible.”

I made further enquiries and learned that the Environment Committee of the San Diego City Council has listed establishment of a climate change resiliency plan — including mitigation for sea level rise — a priority topic in 2017.

Attempting to follow up on this information, I contacted the San Diego City Attorney’s and District Attorney’s office via email to inquire if there were any climate change lawsuits pending or planned.

The District Attorney’s office responded via email, saying: “[T]here are currently no climate change litigation cases pending. The issue of climate change litigation has commonly been addressed through private litigation. Cases come to us through regulatory agencies as well as private action groups. Our office actively monitors cases in the state to determine whether San Diego County can participate in environmental litigation.”

Why should San Diego consider filing a climate change lawsuit? The costs of infrastructure changes necessary to protect lives and property, and to decrease CO² emissions to prevent even worse environmental degradation, are exorbitant. The San Diego Foundation Regional Focus 2050 Study, 2008, Chapter 3: Climate Change Scenarios, reports that San Diego can expect a 12 to 18-inch rise in sea level. Insurers will leave the market as has been evidenced in other flood zones and property values will decline.

The CDC report on Climate Change and Health outlines many health effects San Diego can expect:

• Healthcare expenses will escalate as San Diegans suffer the physical effects of heat waves and poor air-quality related respiratory ailments.
• Infectious disease and the cost to treat, vaccinate and eradicate will explode.
• Mental health resources will be significantly stretched as increasing ambient temperature and extreme weather events trigger more frequent relapses of mood disorders, increased suicide rates, eco-anxiety and depression.
• Multi-year drought will result in water shortages and agricultural losses.
• Mega wildfires spur mass evacuations of people and companion animals with sheltering responsibilities and increased costs of wildfire surveillance and mitigation.

Warmer ocean temperatures throughout the year also contribute to an increase in marine mammal rescues due to starvation and toxic algal blooms.

Does the fact that San Diego has not completed the work to estimate climate change costs for preparedness indicate a lack of San Diego leadership in this area? During the conversation with Mayor Dedina, I asked why he thought Imperial Beach was at the forefront of these climate change lawsuits. He said:

“[H]istorically Imperial Beach has been engaged with all the peoples and the environment of the region. Imperial Beach is surrounded by 17,000 acres of protected open space and we are concerned about the impacts of flooding and water quality. Imperial Beach is a leading city in the world in this type of regard for natural resources.”

San Diego also has people, natural resources, and wildlife that are precious and in danger from climate change. Should not San Diego be a leading city in this area? The potential impact of decreased property values on tax revenues as well as skyrocketing expenditures threaten the quality of life and future desirability of America’s Finest City.

In 2015, San Diego passed an aggressive Climate Action Plan. The plan states the need for community development of adaptation strategies (e.g. Coastal Plans). In the report, Sea Level Rise Adaptation Strategy for San Diego Bay 2012, overall vulnerabilities and adaptation strategies were outlined. These strategies are intended to be implemented by local jurisdictions. Estimating climate change expenditures is a matter of fiscal-preparedness and could potentially lay the framework to recover funds to alleviate some of the impacts on the taxpayers of San Diego (the vast majority of whom did not benefit from the fossil fuel companies’ ill-gotten profits).

A New York Times article in August 2017 highlighted there are 900 climate litigation suits in 20 countries, in accordance with the UN Environment Program 2017 report — The Status of Climate Change Litigation — a global review. These lawsuits are modeled on tobacco company lawsuits where the producer of the product knew of deleterious effects, yet continued with misrepresentative marketing. There is irrefutable evidencepresented in the complaints filed by the law firm Sher Edling LLP — which is handling several of the lawsuits — that fossil fuel companies engaged in a campaign to malign climate science in public, while simultaneously preparing for the expected consequences of sea level rise and extreme weather events.

The fossil fuel companies have known for decades that increased atmospheric CO² is causing catastrophic climate change, yet continued with extraction, failed to disclose harmful effects and marketed their product for continued use. These companies fostered fossil fuel driven planetary warming to protect their bottom line.

Can we expect these climate lawsuits to be successful? Some of the first lawsuits (such as Kivalina v Exxon Mobil Corp, et al. 2008) relied on Federal Common Law and were rejected by the courts per interpretation that their claims were displaced by the Clean Air Act or the EPA who were already taking action to reduce emissions. More recent lawsuits are trying strategies of arguing violation of Constitutional Rights, Securities Law, or relying on State Common Law.

The Oregon Children’s Suit sued the US government based on a right to a stable climate and healthy atmosphere for current and future generations. They charge the government with subsidizing, transporting and exploiting fossil fuel resources on public lands knowing that fossil fuels contributed to increasing CO² levels. They claim violations of Due Process and Equal Protections under the 5th Amendment, a Violation of Unenumerated Rights Preserved by the People under the 9th Amendment and a Violation of Public Trust.

New York and Massachusetts filed suit against fossil fuel companies under Securities Law. Did the non-disclosure of known climate change risk equal fraud? Did it lead to an over-valuing of assets they knew would suffer losses from climate change? Should California consider this lawsuit? For every 1℃ rise in average temperature, California will lose $26 billion a year. A rise of 2-6℃ is expected by 2100. Shore areas will begin to experience chronic flooding in fewer than 20 years. Wildfire suppression costs will explode.

The UC and CALPERS pension funds see fossil fuel divestment as financially risky, but future devaluation is also risky and could result in a huge bill to the California taxpayer to meet pension guarantees. Fossil fuel companies who mislead the public — fostering an environment where CO² emissions continued to increase — should bear the expense.

If current leadership has been unable to expedite development of coastal plans and expenditure estimates, perhaps we should ask where the 2018 candidates stand on this issue. As recently seen in the Hepatitis A outbreak and homeless situation in San Diego, delaying action on difficult-to-solve issues only exacerbates the problem, hurting our residents and increasing the cost of amelioration.

Stephanie Corkran, MA, is an anthropologist who works in research at UCSD and a volunteer of SD350.org. She is a Coast Guard veteran who enforced environmental law and responded to oil and hazardous material spills, including the Exxon Valdez oil spill.