Tuesday , October 16 2018
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Suing oil companies as futile as boycotting them

Last year we learned that more than half of humanity’s greenhouse gas emissions could be traced back to the activities of just 25 corporations; including the oil companies.  Cue ill-conceived social media posts demanding an immediate boycott.

Even environmental NGOs like Greenpeace and Friends of the Earth were obliged to step in to dampen this sentiment – “we prefer to go down the divestment route” – and with good reason.  If we – particularly those of us in developed economies – really were to boycott these corporations, around six out of every seven humans on the planet would be dead within a month (restoring the global population to the 1 billion or so that can be sustained without using fossilised sunlight).

Divestment campaigns, however, have had little noticeable impact in the face of a global oil glut that began in mid-2014 and is only now dissipating.  Instead, several public authorities and campaign groups have filed legal actions against the oil companies in an attempt to curb their activities through legal means.  These, however, are doomed to fail for much the same reason that boycotts fail.

In an article for Newsweek, law Professor Richard A. Epstein sets out the reasons the current crop of law suits in the USA (and other common law jurisdictions) will fail:

“The relevant causal connection has to be so tight that there are no intervening forces between the discharge and the ensuing physical invasion of the plaintiff’s property. So, for example, the supplier of various materials and chemicals is not responsible for the waste that a manufacturer emits from their use.”

While we might be able to “trace half of the carbon emissions back” to just 25 corporations, few of those corporations can be held liable in civil law because there are too many intermediaries whose share of the damages caused are simply impossible to calculate.  In short, Exxon is not liable for the carbon released when you drove your car to the supermarket, took a flight on holiday or turned your thermostat up a notch.  Indeed, if civil law allows anyone to be sued, it is you!  As Epstein notes:

“The dangerous releases came from many different parties, both private and public, including the municipalities bringing these lawsuits.

“These numerous parties used these products in countless different ways, with as much knowledge of their asserted effects on global warming as these five defendants…  Indeed, even for gasoline, the level of carbon dioxide emissions critically depends on the operation and maintenance of the many different types of facilities, equipment, and vehicles, all of which are beyond the direct control of the oil companies.”

It fell to the satirists at The Onion to give voice to the reality that the boycotters, divestors and litigants were wilfully ignoring:

“Several billion individuals, who IPCC officials confirmed are currently operating in 195 countries worldwide, are together responsible for what experts called the “lion’s share” of the devastating consequences of global warming affecting the entire planet.”

At this stage, the fossil fuel corporations are a lot like the creature in the first Alien movie, which bleeds acid when you try to remove it… can’t live with them, can’t live without them.  Attempts to stop fossil fuel production without first removing our economic and social dependency upon it will simply deprive us all of the only energy and resources available to us to have enev half a chance of mitigating climate change and build an alternative economy.

As you made it to the end…

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