Here’s why lawyers suing oil companies are following the opioid cases

Source: By Dino Grandoni, Washington Post • Posted: Wednesday, September 4, 2019

5-mg pills of Oxycodone. (AP Photo/Keith Srakocic, File)

Lawyers suing some of the world’s largest oil and natural gas companies over climate change are closely following a seemingly unrelated ruling out of Oklahoma — one holding a drugmaker culpable for fueling the state’s opioid epidemic.

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.

An Oklahoma state judge’s landmark decision last week against Johnson & Johnson was the first to hold a drugmaker responsible for the nationwide flood of addictive opioids. Using state common law normally invoked in neighborly disputes, Oklahoma’s attorney general argued the drug company had created a “public nuisance” by pumping the market with painkillers.

Similarly, 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.

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.

But it remains unclear if the wave of litigation — which has faced stiff headwinds in the past but is now propelled by stronger science and reports about what oil companies previously understood about climate change  — will succeed or fail.

The definition of public nuisance varies from jurisdiction to jurisdiction, but typical examples include the stuff of obnoxious neighbors: blaring loud music, shooting off fireworks or failing to keep a dangerous dog on a leash.

The fact that Cleveland County District Judge Thad Balkman accepted the 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 of the Niskanen Center who is representing two counties and a city in Colorado, said of the Oklahoma case.

But linking a worldwide problem like global warming back to specific oil companies remains a challenge. The burning of any individual corporation’s product can only be partially responsible for global climate change and the companies are not using the fuel themselves — motorists, airliners and power plant operators are.

“A molecule of carbon dioxide is literally around the world in seven days after its produced and is effectively severed from its source,” said Scott Segal, an attorney with Bracewell LLP who represents energy companies. “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.”

But Bookbinder points out that Johnson & Johnson’s share of opioid sales in Oklahoma was less than 1 percent of the market, according to the company itself, yet it still lost in state court. Johnson & Johnson denies any wrongdoing and said it would appeal.

“The oil industry is saying, ‘Why are you suing us? We’re just a part of it,’ ” Bookbinder said.

Efforts to hold oil and gas companies accountable with similar legal arguments have previously failed in federal courts. In 2009, an appellate court ruled against the vulnerable Alaskan coastal village of Kivalina. And in 2011, the Supreme Court unanimously decided against a public nuisance suit brought against a group of electric utilities from eight states and New York City.

In both cases, the courts reasoned the Environmental Protection Agency was already addressing climate change with federal pollution rules. So the new bevy of public nuisance lawsuits against the oil industry — coming from the cities of New York, Baltimore, San Francisco and Oakland, among others — have been filed under state, rather than federal, common law, which the plaintiffs think gives them a better shot at winning.

So far, the legal fight between the municipalities and oil firms has been focused on whether the claims should be heard at the federal or state level. Several federal district courts have already weighed in, but have ruled in different ways — keeping the case from Baltimore and the state of Rhode Island in state court while throwing out the cases brought by New York and San Francisco.

The appellate courts and, perhaps eventually, the Supreme Court will have to determine the best venue for the cases. But even if they remain in state court, as the left-leaning local governments hope, the suits still face legal hurdles even with the favorable precedent set in Oklahoma.

“A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,” said Richard Lazarus, a professor of environmental law at Harvard.

“But the converse is not true,” Lazarus added. “A favorable ruling is certainly good news for the climate public nuisance plaintiffs but the remaining lift necessary for the climate plaintiffs to prevail remains considerable.”