The dismissal of New York state’s "Exxon Knew" lawsuit may – or may not – put a chill on similar climate litigation across the country, including Florida.
New York County Supreme Court Justice Barry Ostrager on Dec. 10 ruled after an October trial that the New York Attorney General Office’s securities fraud claims in People of the State of New York v. Exxon Mobil Corp. were without merit.
The state cited New York’s Martin Act, which makes it illegal for a publicly traded company to deceive investors about the company's management of risks, in filing its October 2018 lawsuit against ExxonMobil for purposely downplaying the long-term risks of carbon fuels.
Although Ostrager said the state failed to provide evidence to make its case, he did not “absolve ExxonMobil from responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products.”
Ostrager said New York’s AG could not link evidence that ExxonMobil violated the Martin Act with “how ExxonMobil accounted for past, present and future climate change risks.”
In fact, he said, the trial revealed “ExxonMobil has a culture of disciplined analysis, planning, accounting and reporting. There was not a single ExxonMobil employee whose testimony the court found to be anything other than truthful.”
Because the lawsuit and ruling focuses narrowly on New York’s unique Martin Act, it is uncertain how the dismissal of the Exxon Knew lawsuit will play out elsewhere, such as in Juliana v. United States, pending before the U.S. 9th Circuit, or in climate litigation lawsuits filed in Alaska, Colorado, Maine, Massachusetts, New Mexico, North Carolina, Oregon, Washington and Florida.
EarthRights International [ERI], a Washington, D.C.-based nonprofit, met several times in 2018 and 2019 with Fort Lauderdale city officials and commissioners to persuade them to bring lawsuits against “manufacturers in the energy sector.”
Miami, Miami Beach and Jacksonville are among other Florida municipalities considering climate litigation, spurred by a Center for Climate Integrity report that states Florida taxpayers will need to pay $75.9 billion to build seawalls as sea levels rise.
Fort Lauderdale’s prospective climate suit will “remain in a holding pattern until some plaintiff secures some measure of success,” Mayor Dean Trantalis told The Sun-Sentinel. “If we find that someone has been able to establish a legal foothold, only then would it make sense.”
Meanwhile, the only climate litigation to matriculate through Florida’s court system – Reynolds v Florida – goes before 2nd Judicial Circuit Judge Kevin J. Carroll in his Tallahassee courtroom on Jan. 8.
The 62-page lawsuit was filed in April 2018 by the eight plaintiffs, all aged 19 or younger. It alleges the state, Gov. Ron DeSantis’ and other officials’ support for “a fossil fuel-based energy system, have caused widespread harm to the plaintiffs and the natural resources in Florida.”
The lawsuit demands the state prepare “a consumption-based inventory of Florida’s greenhouse gas emissions and to prepare and implement an enforceable comprehensive statewide remedial plan, including specific dates and benchmark targets, to phase out fossil fuel use and draw down excess atmospheric CO2 through forest and soil protection.”
The lawsuit’s lead plaintiff is Delaney Reynolds, now a marine science student at the University of Miami's Rosenstiel School of Marine & Atmospheric Science. She is also the founder and CEO of "The Sink or Swim Project," an environmental advocacy nonprofit, and a self-described “eco-warrior.”
“Logic and common sense tell us that if we continue to pump carbon pollution into our oceans and atmosphere, temperatures will continue to rise,” Reynolds wrote in her blog on MiamiSearise.com. “Unless and until we remove carbon-emitting products from our daily lives – coal, gasoline and so forth – and rapidly shift to sustainable solutions, then this problem will only get worse and worse.”
The League of Women Voters of Florida, Reef Relief, the Izaak Walton League of America Florida Keys Chapter, and the Florida Council of Churches have filed briefs in support of the lawsuit.
In addition to DeSantis, other defendants include state Agriculture Commissioner Nikki Fried, Department of Environmental Protection (DEP) Secretary Noah Valenstein, the Florida Board of Trustees of the Internal Improvement Trust Fund and the state’s Public Service Commission (PSC).
All have asked the court to dismiss the lawsuit, maintaining the plaintiffs do not have a fundamental legal right to a healthy climate and that the state of Florida does not have a legal obligation to protect the atmosphere.
“Their asserted right to a stable, habitable climate is not deeply entrenched in our nation’s history,” their motion to dismiss stated. “There is no need to address whether the government created the alleged climate danger and therefore has an affirmative obligation to take actions to protect plaintiff’s alleged liberty interest.”