Oil companies have become some of the wealthiest organizations in history by producing a product that we now know is endangering the future of humanity.
Many of these companies have known about the effects of carbon dioxide for decades, yet while they adapted their own businesses to survive climate change, they actively undermined efforts to understand it.
Should Canadians be able to sue oil companies for that?
“They are in a position to pay for this damage; they have the responsibility to pay for this damage,” Peter Tabuns, the NDP’s climate change critic in the Ontario legislature, told DeSmog Canada. “We’re talking very big bucks.”
Tabuns has introduced legislation, the Liability for Climate-Related Harms Act, that would open oil companies up to lawsuits in Ontario.
The bill sets out a legal framework for individuals and the government to sue fossil fuel companies for climate-related damages like flooding or wildfires, and to force them to pay for infrastructure that protects against those effects.
The National Round Table on the Environment and the Economy estimated in 2011 that by 2020 climate change would cost the Canadian economy $5 billion per year – and more than $40 billion by 2050. Around the world, that number is closer to $600 billion annually.
Tabuns’ bill is modelled after lawsuits that are ongoing in the United States.
The question of legal culpability used to be a sticking point for these kinds of cases, but according to Keith Stewart, energy campaigner at Greenpeace Canada, that’s beginning to change.
“We used to say, ‘oh, you can’t attribute any particular disaster to climate change,’ – well, now you can,” he says.
That ability to parse what contribution climate change made to the strength of a hurricane, for example, means a dollar value can now be put on a lawsuit. Directing that lawsuit at a particular company is also now possible thanks to a more thorough accounting of emissions.
“We have evidence of which company has produced which percentage of greenhouse gas emissions,” he says.
— DeSmog Canada (@DeSmogCanada) March 28, 2018
Modelled after tobacco legislation, American lawsuits
The tactics used by oil companies and those used by tobacco companies are remarkably similar, as laid out in the books Climate Cover-Up and Merchants of Doubt – they even employed the same public relations firms. The playbook was to move from outright denial of the products’ harms to obfuscation of the science, leading lawmakers to delay action for as long as possible.
“They were saying, ‘we don’t know enough about climate change for governments to take action,’ ” says Stewart. “At the same time, they were building their offshore drilling platforms higher, because they assumed that over the 50-year lifespan of that drilling platform, seas were going to rise.”
This duplicity, Stewart believes, is at the heart of why these lawsuits could be successful in the same way tobacco lawsuits were successful.
“The reason they were held accountable was because they knew the harm their product was causing, but they didn’t warn people,” he says.
Andrew Gage, a lawyer with West Coast Environmental Law, agrees, points to evidence that fossil fuel companies knew as early as the 1960s about the effects of carbon emissions. Instead of warning the public and trying to reduce their emissions, the companies set about preventing that knowledge from reaching the public.
“We want to make it very clear that it was never legal to sell a product that you knew would destroy communities and pollute our global atmosphere and cause massive economic and human upheaval,” says Gage.
“Usually, the moment you become aware your product is killing people, you have some obligations about that. It’s actually quite bizarre.”
Tabuns’ bill doesn’t have much of a chance of becoming law at this point – it’s a private member’s bill offered up by an opposition party near an election.
But according to Stewart, who helped Tabuns draft the bill, that isn’t the point.
It’s about getting the issue on the agenda, forcing government ministries to analyze the possibilities, and “putting the big polluters on notice that this is coming,” he said.
For Gage, the exciting part about the bill is creating a provision that makes companies liable for damages, regardless of their intentions. It creates a financial incentive for them and their investors to change.
“These costs are just going to continue to rise,” says Gage, pointing to the B.C. Lower Mainland, where cost estimates to adapt to sea level rise alone are approaching $10 billion by 2100.
“So I have no doubt that these cases will continue to be filed around the world. It is not affordable for taxpayers to continue paying.”