A Texas law that allows private citizens to sue abortion providers has paved the way for legislation in New York that would empower state residents to sue the fossil fuel industry for the ravages of climate change.
The New York bill was introduced by state Sen. Zellnor Myrie, a Democrat who opposes the Texas anti-abortion law.
But Myrie contends that if the legal theory behind the Texas law has been upheld by the U.S. Supreme Court’s “super-conservative majority,” it can also be wielded to give private individuals the opportunity to target oil and gas companies for spewing greenhouse gases that have forced communities to contend with rising seas and natural disasters fueled by climate change.
“If we know with certainty that our time is short to save our planet, why aren’t we taking every shot to save it that we can?” Myrie asked. “Why not use every avenue? Why not use every tool?”
The 2021 Texas law bars abortions after about six weeks and gives private citizens, rather than state officials, the power to enforce the law by suing individuals and providers who terminate pregnancies. The Supreme Court in December 2021 declined to block the Texas measure, even as critics warned that the law’s “private right of action” could be wielded by other states to target activity they oppose.
That’s already happened: As of Jan. 1, anyone in California can sue those who violate state laws against the manufacture, distribution or sale of assault weapons or kits that create firearms without serial numbers. Gov. Gavin Newsom (D) announced his intent to pursue the gun control legislation the day after the Supreme Court allowed the Texas abortion law to stand.
Taking that lead, Myrie’s bill would create legal standing for an individual to pursue a climate lawsuit against an oil and gas company. It states that “any person, firm, corporation, or association that has been damaged as a result of a fossil fuel industry member’s acts or omissions … shall be entitled to bring an action for recovery of damages.”
The legislation also would expand New York’s business laws to include “climate negligence,” which Myrie defines as any act by the fossil fuel industry that “knowingly or recklessly endangers the health or safety of the public.” The bill also would prohibit deceptive and false advertising, which many local governments have cited in climate liability lawsuits against the industry.
Myrie said Texas legislators had hoped that the threat of an individual being empowered to sue would decrease the likelihood of abortions and suggested his climate legislation could have a similarly chilling effect on the fossil fuel industry’s activities.
“We might be in a similar situation here where the prospect of litigation is something that they will have to contend with,” Myrie said of the oil and gas companies. “They may say this is the cost of doing business, but my hope is that they would have a moment of introspection and say, ‘Hey we’ve had these record profits, but public sentiment is turning. … Maybe we should stop being deceptive and start engaging in a real and genuine way to see what can be done to mitigate the crisis.’”
New York Democrats have supermajorities in both chambers, and Myrie’s legislation has attracted an influential House sponsor, Assemblymember Michaelle Solages (D), who chairs the state’s Black, Puerto Rican, Hispanic and Asian legislative caucus.
It has also attracted strong opposition from industry groups and the Lawsuit Reform Alliance of New York, a coalition of business leaders and taxpayers.
“We refer to this as the ‘sue for the weather bill,’“ said Tom Stebbins, the group’s executive director. “It just seems like it will lead to an explosion of litigation.”
In a memo to lawmakers expressing its opposition to Myrie’s bill, the group argued that “thoughtful legislation and collaboration are more effective in developing long-term solutions toward mitigating climate change.”
Stebbins also noted that an attempt by New York City to sue five fossil fuel firms over their contributions to climate change was rejected in 2021 by a federal appeals court.
“Now sending that to the private sector where profit-seeking attorneys can file cases for their own pockets does not seem to make sense, and it’s not how we’re going to fight climate change,” he said.
Rachel Rothschild, an assistant professor at the University of Michigan Law School, questioned whether Myrie’s legislation, if enacted, would run afoul of the 2021 ruling by the 2nd U.S. Circuit Court of Appeals, which found that New York City’s climate claims against the oil and gas companies were preempted by the federal Clean Air Act.
“The first question in my mind is whether the bill would be viable given the 2nd Circuit decision,” Rothschild said, noting that she disagrees with the opinion in the case. “It’s not clear to me how this law would get around that, how it would survive a challenge on similar grounds.”
‘A wedge into that courthouse door’
Myrie’s proposal comes as local governments from Hawaii to Delaware are suing the oil and gas industry to help foot the costs of responding to eroding coasts, raging wildfires and other effects of a warming planet.
But the climate liability lawsuits — which could ultimately cost Exxon Mobil Corp., BP PLC and other firms hundreds of billions of dollars — have been stymied by efforts by oil industry attorneys to move the cases from state to federal court, where companies believe the challenges are more likely to fail. The Supreme Court may soon weigh in once again on the procedural fight.
Myrie said his legislation seeks to prevent the industry from transferring private citizens’ climate lawsuits to federal court. Instead, the cases would be heard before New York courts, which Myrie said are well-versed in the state’s negligence, public nuisance and consumer protection laws.
“I would hope that the industry is aware enough that we’re going to continue to act on climate,” Myrie said. His legislation was introduced in December for the state’s six-month legislative session, which began in January. “You can either be constantly on the other side, or you can figure out how to be part of the solution.”
Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the climate liability lawsuits from local governments, said the fact that New York lawmakers believe there is a need to authorize litigation “underscores why suing energy producers for climate change is not viable under current law.”
He said it is “time to move on from this litigation side show and focus on policies that can make a meaningful difference in the fight against climate change.”
Myrie’s legislation has not yet been heard in committee, but Solages’ participation signals there is interest on behalf of communities that have been most vulnerable to the effects of global warming, said Eleanor Stein, who teaches climate change and human rights at the State University of New York at Albany.
Stein said Myrie’s proposal “falls in line” with the state’s ambitious 2019 Climate Leadership and Community Protection Act, which pledged to give disadvantaged communities at least 35 percent of the benefits of clean energy and energy efficiency spending. Those communities are most likely to be affected by climate change, she said.
“It’s really a way to create a right of action for individuals or community organizations to file lawsuits to get relief from climate impacts,” Stein said of Myrie’s legislation. “They’d have to show they were substantially harmed by climate change, which is a high bar. But it gives you a claim that you could make under state law, which I think is an important opportunity.”
Litigants launching climate lawsuits against oil and gas companies would still “have a huge mountain to climb, to show injury, to show causation,” Stein said. “But it’s a wedge into that courthouse door.”
