Environmental lawyer Andrew Gage wrote to the Vancouver Sun (Fossil-Fuel Firms Must be Held Accountable –- July 26, 2018) on behalf of 50 B.C.-based organizations to persuade B.C. provincial legislators to enact a Liability for Climate-Related Harm Act, legislation that makes it easier to sue companies that “extract, refine and sell fossil fuels” for the likely costs of climate change (at least $8 billion alone to prepare for rising sea levels by 2100, he claims). The proposed legislation is similar to an Ontario private member’s bill that died on the order paper before their election. Mr. Gage likens the proposed legislation to that enacted in B.C. in 1997 enabling the province to more easily sue the big tobacco companies for health-care dollars.
But fossil fuels are not tobacco. We all derive incredible social benefits and prosperity from them and have adapted their use over the last 150 years into an intricate, complex energy web with enormous infrastructure, interwoven throughout our economies and our lives. No other source is yet ready to replace them. Despite decades of efforts and an enormous amount of governmental monies, fossil fuels continue to supply us, as before, with 80% of world energy needs. Solar and wind remain at less than 2%.
The responsibility for their use is remarkably diffuse. Climate change that is human-induced results from ordinary human survival and flourishing –- “growing food, heating our homes, and even going to school,” in the words of Nobel-winning climate change economist William Nordhaus. Our demands are the cause for fossil fuels supplied by producers. As was said by the District Court Judge William Alsup (a Clinton appointee) in summarily dismissing without trial the lawsuit brought by the cities of Oakland and San Francisco against five oil companies for the same types of cost that concern Mr. Gage (and cited by him as one of the cases which “we can learn from”):
But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it be really fair to now ignore our own responsibility for the use of fossil fuels and place the blame for global warming on those who supplied us what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable?
A similar case brought by the city of New York (also mentioned by Mr. Gage in support of his position) was also summarily dismissed. District Court Judge John Keenan said:
However, the immense and complicated problem of global warming requires a comprehensive solution that weighs global benefits of fossil fuel use with the gravity of the impending harm.
In the language of the law, it might be said that we are all tortfeasors. Why then the singular focus by Mr. Gage on fossil fuel producers? Mr. Gage does at first seem to acknowledge diffuse responsibility: “We’re told that we are all responsible for climate change.” But if this is an admission, it’s an insincere one, for he goes on to argue that only some of the “wrongdoers” –- the producers –- are responsible for the costs.
A court would normally attempt to locate harmful conduct across the board before attempting to assess common law liability and this is likely behind Mr. Gage’s desire to, as he says, “clarify the liability” of producers with legislation. Indeed, the Ontario bill, which Mr. Gage says is similar to the legislation he is proposing for B.C., provides for strict liability, that is, liability that does not depend on actual negligence or intent to harm: Every party, it says, “engaged in the production of fossil fuels to which a globally detectable level of greenhouse gas emission can be attributed… is strictly liable for climate-related harms.” The benefits of fossil fuels have been hived off from the calculus and a court would not be able to consider them.
The fix is obviously in – concentrated liability and no consideration for beneficial effects. Why would Mr. Gage possibly think this is fair? I can discern a number of possibilities and mention two here.
The first is that the producers have received –- here’s that dirty word –- profits. “Why,” he asks “should fossil-fuel companies pocket the profits while taxpayers pay for the costs of fossil-fuel pollution?” It’s all a zero sum game to him –- someone wins and someone loses –- and the party that takes away “profit” wins. But we know that this is a labeling game and a false bifurcation. The actual relationship admits of greater complexity where all receive value, whether a return on investment or transportation to the store to pick-up groceries. If there were no benefit to us, we would of course not purchase fossil fuels.
Profit however, is not an irrelevant consideration, but just not in the negative way used by some environmentalists. In fact, profit provides us with huge social benefits. Without it, little energy would have been supplied. And indeed, the profit motive will likely be instrumental in finding alternative energy sources and carbon reduction techniques in the future.
The second reason for the focus on producers, not unrelated to the first, is that the producers have forced us to use fossil fuels. That’s right! It is an article of faith among some environmentalists that the fossil fuel route is a false one –- that we have had other choices. Thus, we understand his frame of mind when Mr. Gage says, “[t]he alternative is a world in which fossil-fuel companies feel free to keep driving us toward a climate-change cliff…” But this exists in a dream world where renewable sources of energy are ready to replace fossil fuels as our energy of choice. In the alternate universe of the radical environmentalists, the producers have conspired in making certain that no one dares provide us with clean energy.
Mr. Gage claims that the producers knew as far back as the 1960s that fossil fuels would cause climate change. This is poppycock. Not even James Hansen knew of any problem then. But even if that were so, would it really have been better that the producers stopped supplying us with fossil fuels back in the 1960s? Or, at some later date, like the 1980s or 1990s? Or, even now?
Absolutely not. We need fossil fuels. It is time to see the world in real, complex terms. More informed and reasonable people know the difficulties that are involved in dealing with climate change. There are now no real alternatives to fossil fuels. Pulitzer-prize winning historian Richard Rhodes, author of Energy: A Human History, wrote recently in the Globe and Mail (June 16, 2018):
Energy transitions take time. Across the past 400 years, as the world has transitioned from wood to coal, to oil, to natural gas and nuclear power, the average transition time from zero to 50-per cent market penetration has been about 100 years. Enthusiasts who promote the wonders of new energy sources often fail to grasp that hard truth. … A new energy source isn’t just a windmill or a solar farm. It’s infrastructure and social learning as well.
The fact is clear that we need fossil fuels and will do so for many years to come. It is unfortunate that some environmentalists will not face that fact and will continue to hound those that have provided and will continue to provide us with the miracle of energy.
Briefly Writ 