Fossil fuel firms move to dismiss climate lawsuit
in Hawaii as Maui faces wildfires
In 2020, Honolulu officials had sued eight oil and gas
companies over the steep costs of abating damages from extreme weather
Dharna Noor
Thu 17 Aug
2023 17.50 EDT
Hawaii’s
supreme court on Thursday heard attempts by fossil fuel companies to dismiss a
climate accountability lawsuit. The hearing came as the deadly fires in Maui
capture global headlines.
“This is
the first time the court has been in session since the fires in Maui last
week,” the Hawaii supreme court chief justice said as the hearing began, before
calling for a moment of silence for those who lost their lives in the blazes.
In 2020,
officials from the city and county of Honolulu sued eight fossil fuel giants
that allegedly knew for decades about the climate dangers of burning coal, oil
and gas, yet actively hid that information from consumers and investors. That
misinformation campaign, the lawsuit argues, is a key reason Honolulu is facing
the steep costs of abating climate damages from extreme weather events.
“You can
think of how Hawaii would have been different if they had stood up 50 years ago
and said, ‘If you use our products unabated, your islands are going to be
destroyed,’” Vic Sher, attorney for the plaintiffs, said about the defendants
at Thursday’s hearing. “They have deprived these public entities of the
opportunity to make choices and control their future.”
The case is
one of dozens filed against big oil since 2017 by states and municipalities
over climate deception, which build on certain oil companies’ well-documented
history of sowing doubt about climate science. Another suit was filed by Maui
county, where wildfires among the deadliest in US history have been blazing;
that case was at one point consolidated with Honolulu’s.
The fires
ravaging Hawaii “underscore the importance” of such litigation, said Denise
Antolini, a retired University of Hawaii law professor and supporter of the
plaintiffs.
“If the
truth had been known about climate change, if the truth had been allowed to be
known by big oil, Hawaii might have had a different future,” she said. Though
the climate crisis was not the sole cause of the record-breaking fires, she
added, it “set the table” for the destruction by fueling unusually hot, dry,
flammable conditions.
Fires are
just one form of extreme weather the Honolulu case says is plaguing the city
and county. Other climate-related public nuisances, including flooding, sea
level rise, heatwaves and drought, are together costing the city billions and
putting residents and property at risk, the lawsuit says.
The
defendants’ attorneys in the Honolulu case have not attempted to argue that
climate change is not real or human-caused. In fact, in a 2021 hearing, Chevron
attorney Ted Boutrous, speaking for all of the suit’s defendants, said climate
change is an “exceedingly important issue of utmost public concern”.
Yet the
defendants have filed several motions to dismiss the case, two of which the
Hawaii supreme court heard on Thursday afternoon.
“The
hearing … is an incredibly important milestone in the case because it
determines whether or not the case will proceed to discovery, to further
motions and to trial,” said Antolini. “So it’s a go or no-go point.”
The court
first heard a “personal jurisdiction” motion, in which the defendants will
argue that they did not conduct enough business in Hawaii to be hauled into the
state’s courts. After all, the vast majority of planet-heating pollution from
the defendants’ fossil fuel products was emitted outside of Hawaii, they claim.
“It’s all
about emissions and the consequences of global emissions,” said Chevron
attorney Boutrous, who once again represented the defendants, at the hearing.
But that
argument is wrongheaded, said Richard Wiles, president of the Center for
Climate Integrity, which backs the litigation against the industry.
“This
lawsuit is about deception and it alleges that the company engaged in deceptive
practices within Honolulu, within Hawaii,” he said.
At the
hearing, Sher noted that the defendants operate gas stations, refineries and
storage facilities in Hawaii. Though they argue Hawaii constitutes just a small
part of global emissions, “Hawaii was big enough for them to invest in the
market here, to promote and sell their fossil fuel products here,” he said.
The
defendants’ attorneys also argued a “failure to state a claim” motion, which
claims that the lawsuit should be tossed out because the issues with which it
grapples should be dealt with by lawmakers, not state courts. Specifically,
they argued that both federal common law and the Clean Air Act should pre-empt
the lawsuit, meaning they should limit the power of Honolulu’s government to
weigh in.
“Our
position is that every claim that challenges global emissions as the mechanism
… of their injury, is pre-empted by and displaced by the Clean Air Act,” said
Boutrous.
Sher
disagreed. “The Clean Air Act reduces pollution,” he said. “It does not provide
a safe haven for international corporations to dissemble and lie about their
products, which is what the defense’s argument boils down to here.”
The first
circuit court in Hawaii denied both of these motions to dismiss last year, but
the defendants appealed.
“These are
delay tactics they’re using to avoid going to court,” said Wiles of the Center
for Climate Integrity
One
defendant in the Honolulu suit, Chevron, has also filed a third motion to
dismiss the case on the grounds that it violates the company’s first amendment
rights. That motion was also dismissed by a Hawaii court last year and is
moving through a separate appeals process.
A decision
on the motions to dismiss the case could take many months to emerge. “We look
forward to the court’s forthcoming decision as we continue to litigate the case
and move toward trial,” Matthew Gonser, the chief resilience officer and
executive director at the city and county of Honolulu’s office of climate
change, sustainability and resiliency, said.
The hearing
comes just days after climate campaigners notched a major win in another type
of climate lawsuit. On Monday, a Montana judge ruled in favor of 16 youth
plaintiffs who sued the state government on the grounds that its pro-fossil
fuel policies violated their constitutional rights to a clean and healthy
environment.
Advocates
say it sets a positive tone for a similar federal lawsuit, Juliana v US, which
is set to go to trial in the coming months, and four similar state lawsuits,
including one filed by Hawaii youth plaintiffs which will go to trial in June
2024.
The
youth-led lawsuits are based on a different legal theory than the Honolulu case
and others filed by governments against big oil, Wiles said
“They’re
complementary strategies,” he said. “One says you’ve got to get the government
to stop backing policies that actually accelerate climate change, and the other
says one of the reasons they do that is because of the influence of industry
lying and swaying public opinion.”
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