Will Charleston's Climate Lawsuit Survive the Week?

New York Times

7 days ago

Charleston, a port city draped in Spanish moss and history, and surrounded by rivers and marshland in South Carolina's Lowcountry, is intensely vulnerable to the effects of climate change. The sea level nearby has already risen a foot. Severe storms and flooding have dramatically increased.
So Charleston sued.
The city is one of numerous states and communities suing the world's biggest oil companies, claiming they misled the public about the dangers of climate change. But Charleston's case is unusual. The city has a new Republican mayor, who has let the lawsuit proceed. And the state of South Carolina — also Republican-controlled — strongly opposes the lawsuit.
This week the case faces a major test.
On Thursday and Friday, lawyers for Charleston and the oil companies are scheduled to face off in state court. Among the points to be discussed is President Trump's executive order in April calling lawsuits like these a threat to national security.
Since that declaration, the Trump administration has launched a broad new attack against climate lawsuits. The Justice Department recently took the unorthodox step of pre-emptively suing Hawaii and Michigan to try to prevent them from even filing suits of their own.
The judge in Charleston's case, Roger M. Young Sr., will hear arguments about whether it deserves to proceed to trial. He has also asked each side to weigh in on the implications of Mr. Trump's executive order.
In recent years, the city has become a magnet for tourists and new residents drawn to the well-preserved antebellum mansions, walkable downtown and high-end hotels, shops and restaurants. Horse-drawn carriages take visitors on historical tours of the tree-lined cobblestone streets. Nearby historical sites include Fort Sumter, where the first Civil War shots were fired. The city is home to the Spoleto Festival, the global arts event, and to the International African American Museum, which examines the city's role in the slave trade.
Charleston faces immediate threats from global warming. The city flooded nearly one out of every five days in 2019. Drainage projects and efforts to bolster the city's sea wall have been major priorities for local officials. Increasingly, homeowners are looking into elevating their homes to avoid flooding, a costly and complicated endeavor.
So five years ago the city, then led by a Democratic mayor, John Tecklenburg, sued the oil companies as part of an effort to raise money to help cover the costs of protecting the city.
The energy companies plan to argue that the lawsuit should be thrown out. Several related cases have been dismissed, such as in New Jersey, New York and Maryland. Even so, the oil companies have failed to get judges to toss similar cases in Colorado, Hawaii and Minnesota, among other places.
Collectively the lawsuits, if successful, could cost energy companies billions of dollars — a legal strategy similar to the one used during the 1990s in antismoking lawsuits that ultimately led to a $206 billion settlement by tobacco companies with 46 states.
In a brief filed this month, Charleston said the Trump order was irrelevant to the case, arguing that Charleston's lawsuit is about greenhouse gas emissions in the past, whereas Trump's executive order would be concerned only with future emissions. In addition, the plaintiffs wrote, 'neither this executive order nor the executive branch possess constitutional authority to dictate to this court or the judicial system how to rule.'
The energy companies countered that the order supported their arguments about why the case should be dismissed. The defendants include giants like Exxon Mobil, Chevron and Shell and also smaller regional firms like Brabham Oil Company, based in Bamberg, S.C. In a joint motion filed in 2023, the energy companies argued that the plaintiffs had sought to misuse state laws in an effort to dictate national energy policy through a state court.
The companies argued that federal law, not state law, governs interstate and international emissions. Letting state courts weigh in, they said, would result in a chaotic patchwork of conflicting policies.
'These issues are political questions that have been considered by the executive and legislative branches for decades, resolution of which belongs in their hands, not the judiciary's,' the defendants wrote.
The oil companies first pushed to get the case moved to federal court, as they have in other cases. But a federal judge in Charleston sent the case back to the state court in 2023.
The lawsuit focused on the companies' alleged failure to warn about the threats their products posed to the climate and over what the suit describes as 'public deception campaigns' designed to obscure the connection between fossil fuels and global warming. The claims include violations of nuisance laws, failure to warn, trespass and violations of the South Carolina Unfair Trade Practices Act.
'As this lawsuit shows, these companies have known for more than 50 years that their products were going to cause the worst flooding the world has seen since Noah built the Ark,' Mr. Tecklenburg said when he announced the lawsuit. 'And instead of warning us, they covered up the truth and turned our flooding problems into their profits.'
The suit was only one prong of the city's efforts to deal with flooding. One of Mr. Tecklenburg's signature initiatives was the 'Dutch Dialogues,' a program to help the city learn from flood control in the Netherlands, a place that has famously held back floodwaters for centuries. The late Dale Morris, a co-founder, later served as Charleston's chief resilience officer.
Mr. Tecklenburg has since been succeeded as mayor by William Cogswell, the first Republican to win the office since the 1870s. His office has not dropped the suit, as some have called on him to do.
A spokeswoman for the mayor, Deja Knight McMillan, said, 'The mayor looks forward to reviewing the court's findings and will consider the best course of action for Charleston once more information is available.'
The lawsuit has been met with considerable opposition within South Carolina, including from the state attorney general, Alan Wilson, who submitted an amicus brief in support of the defendants last year. He also joined in recent efforts to get the Supreme Court to review two related cases. The justices have so far declined to do so, partly because the cases in question were still in their early stages, rather than having gone to trial.
Opponents of these lawsuits point to a major difference between tobacco and fossil fuels, namely that oil and gas power the modern world. 'Fossil fuels support the safety, health, security, and well-being of our nation — and of billions of consumers worldwide,' the companies wrote in their motion to dismiss. The emissions that drive climate change are also more diffuse and global in nature, versus the direct harm from exposure to tobacco smoke, the opponents say.
In court papers in the Charleston case, the companies also pushed back against the idea that the risks of climate change weren't already known for years, arguing that they therefore couldn't reasonably be accused of hiding information about risks. They pointed to news articles and legislative activity concerning climate change and its potential effect on South Carolina dating back to the 1980s.
In a letter to the court last week, Theodore J. Boutrous Jr., of the firm Gibson Dunn, which represents Chevron, also argued that the court should look to the May 16 dismissal of a climate-change lawsuit in Bucks County, in southeastern Pennsylvania. The judge there, Stephen A. Corr, wrote that the court was joining 'a growing chorus of state and federal courts across the United States, singing from the same hymnal' in deciding that the claims could not be adjudicated in a state court.
But Victor M. Sher, of the firm Sher Edling, which represents Charleston and many of the other state and local governments that have filed similar suits, countered Mr. Boutrous's arguments in a response to the court. He called the Bucks County ruling 'an erroneous decision that contains no original legal analysis' and added that the court had neglected to mention that the Supreme Courts of Hawaii and Colorado have upheld lower-court decisions allowing similar cases there to proceed.