NY Senate Bill S9612 creates climate negligence for dangers to safety and health caused by fossil fuel activity.
The bill’s sponsors say they wish to hold fossil fuel companies accountable for the harm they have caused and the harm they continue to cause.
63% of the carbon dioxide and methane in the Earth’s atmosphere can be traced back to 90 companies, including ExxonMobile and Chevron.
The Text of the Bill
The bill defines a “fossil fuel industry member” by clarifying this is a person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association with total annual revenues in excess of one billion dollars engaged in extracting, storing, transporting, refining, importing, exporting, producing, manufacturing, distributing, compounding, marketing, or offering for wholesale or resale goods any fossil fuel product.
It then lays out a number of obligations on the part of fossil fuel companies operating in New York.
- They may not knowingly or recklessly create, maintain, or contribute to a condition in New York state that endangers the safety or health of the public, either directly or indirectly, through extracting, storing, transporting, refining, importing, exporting, producing, manufacturing, distributing, compounding, marketing, or selling fossil fuel products.
- They must establish and use reasonable controls and procedures to prevent endangering the safety or health of the public.
- Reasonable controls include preventing deceptive acts and practices and false advertising.
If fossil fuel companies fail to meet these obligations, they could be sued for “climate negligence.” Any person, firm, corporation, or association damaged by this negligence may sue the fossil fuel company for those damages.
The bill’s false advertising provision would require these companies to stop greenwashing.
The bill is gaining support. It is unclear whether such a bill would pass.
What would a climate negligence lawsuit look like?
If the bill did pass, you would not be able to sue a fossil fuel industry member simply because they operate in New York. You would need to show the following.
- That the company created, maintained, or contributed to actions that endangered your safety and health.
- That you have been harmed as a result.
- That you have sustained damages as a result of that harm.
For example, you might have a strong case if you have severe asthma or COPD in a high-emissions area where a single fossil fuel company operates. You might also have a case if rising sea levels destroy your home.
There are many more examples, of course. Ultimately most people would need to ask their friendly neighborhood personal injury attorney whether they could make their case.
A personal always had the right to sue a company that made them sick. These suits have not always been very successful, as often the defendant will lean heavily on the idea that it is impossible to know for sure whether their environmental activities caused a person’s asthma, cancer, or another disease. Climate actions impact whole communities, so they’ve usually been brought forth as class action suits.
This bill could make such suits more successful, as showing that the company’s actions contributed to your condition is not the same thing as showing their actions were the only factor that could have caused your condition.
Climate lawsuits are on the rise around the world. Most of the suits attack these companies for historical and ongoing deceptive conduct, including concealment of internal knowledge of global warming, affirmative misrepresentations of climate science, and ongoing deception regarding their products and activities.
Many of the suits which have sought damages have sought compensation for climate adaptation costs as communities seek to build an infrastructure capable of handling ongoing damage. Many have targeted sea level rise directly, given the hefty costs of installing sea walls and the clear throughline between fossil fuel activity and sea level rise.
Would it be worth it to pursue a climate negligence suit?
It would depend on the specifics of your individual case if the law went into effect. We know that New York Attorney General Letitia James failed to prove that ExxonMobil defrauded investors by making “material misstatements or omissions about its practices and procedures.”
The lawsuit did leave the door open for ExxonMobil and other companies to be held responsible for their role in climate change or for defrauding consumers in response to climate change. New York State Supreme Court Judge Barry Ostrager specifically stated that he was not seeking to close down avenues for such cases.
It will be interesting to watch and see how case law continues to unfold in regard to climate change.
In the meantime, if you’ve been harmed by a corporation, don’t hesitate to reach out to our office. We’ll be happy to discuss whether you have a potential case under today’s law.