A landmark Oklahoma court decision holding a major drugmaker responsible for its part in the opioid addiction crisis is catching the attention of the growing legion of U.S. lawyers trying to hold fossils accountable for their role in the climate crisis.
“The reason is this: Both the cases against pharmaceutical makers and those against the fossil fuel firms are founded on the same legal theory — that the companies’ sale of allegedly harmful products is creating a crisis for which they are financially responsible,” the Washington Post explains.
In the US$572-million decision against Johnson & Johnson late last month, Cleveland County District Judge Thad Balkman found that “defendants’ actions caused harm, and those harms are the kinds recognized by [state law] because those actions annoyed, injured, or endangered the comfort, repose, health, or safety of Oklahomans.” Which parallels the arguments that climate lawyers and their clients are trying to build against oil and gas companies.
“A number of state, county, and city governments from Rhode Island to California are bringing lawsuits against firms like ExxonMobil, Chevron, Dutch Royal Shell ,and BP under the theory that the carbon dioxide their products put into the atmosphere has also created a public nuisance by contributing to climate change,” the Post states. “If successful, the lawsuits could put oil companies on the hook to pay billions of dollars to local governments contending with the cost of higher seas, hotter summers, and other effects of elevated greenhouse gases.”
The Post notes that the definition of public nuisance varies by jurisdiction, but usual ranges to local annoyances like blaring music, dangerous dogs that aren’t on a leash, or shooting off fireworks. But Balkman’s acceptance of a “more expansive view of public nuisance put forward by the state of Oklahoma in the opioid case is good news to those making similar arguments against oil companies.”
“This will be a useful precedent to point to,” said David Bookbinder, chief counsel at the Niskanen Center, who’s currently working with two counties and a city in Colorado.
The challenge is to take a global problem in which every consumer everywhere has a hand and link it back to specific fossil companies. “A molecule of carbon dioxide is literally around the world in seven days after it is produced and is effectively severed from its source,” said fossil attorney Scott Segal of Bracewell LLP. “Using the courts to address climate change stretches the application of nuisance law beyond its snapping point. Instead, issues like carbon emissions are more appropriately left to the legislative and regulatory process.”
However, “Bookbinder points out that Johnson & Johnson’s share of opioid sales in Oklahoma was less than 1% of the market, according to the company itself, yet it still lost in state court,” the Post writes. “Johnson & Johnson denies any wrongdoing and said it would appeal.”
Even with the Oklahoma decision in hand, the Post says there’s no certainty that public nuisance law will become a productive path for legal action against the fossil industry. A loss in the Oklahoma case “would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,” but “the converse is not true,” explained Harvard University environmental law professor Richard Lazarus. “A favourable ruling is certainly good news for the climate public nuisance plaintiffs, but the remaining lift necessary for the climate plaintiffs to prevail remains considerable.”