On September 2, 2020, the City of Hoboken, which sits across from New York City along the Hudson River, commenced suit against a consortium of fossil fuel industry giants alleging the companies engaged in a multi-decade campaign to mislead the public and conceal the climate change risks posed by the production and use of fossil fuels. Hoboken is the 20th municipality, state, or private organization to sue the fossil fuel industry over climate change since 2017, and the fifth local jurisdiction to sue for alleged climate-related fraud, following Washington, D.C., and the states of Minnesota, Massachusetts, and New York.
In its complaint, Hoboken asserted common law claims of public nuisance, private nuisance, trespass, negligence, and violations of the New Jersey Consumer Fraud Act against Exxon Mobil, Shell Oil, Chevron, Conoco Phillips, Phillips 66, and the American Petroleum Institute. The city alleged that the defendants have known for decades that the fossil fuels the defendants extract, produce, market, and sell to the public are causing accelerated climate change, and that the defendants deceived the public about their central role in causing such harm. Hoboken argues it is uniquely vulnerable to sea-level rise as a result of climate change since it’s America’s fifth-densest city, and more than half of the city’s residents, schools, and all of its hospitals, rail and ferry stations, and hazardous waste sites are within five feet of the high tide line. Hoboken seeks damages for costs and losses related to damage from natural disasters allegedly caused by climate change that hit the city, such as Superstorm Sandy, for costs to commission studies into abatement and remediation measures. Further, Hoboken is seeking an order requiring the defendants to abate the harm they caused, as well as an injunction preventing the defendants from engaging in further acts causing climate change related harm.
The lawsuit is the latest to be filed in a growing trend of climate change related suits against the fossil fuel industry. If the prior litigations are anything to go by, we can expect to see the defendants in the Hoboken lawsuit argue for the removal of the case to federal court. However, recent rulings from the Fourth Circuit, Ninth Circuit, and Tenth Circuit confirmed that state-law nuisance suits can proceed in state court. Further, in March, the District of Massachusetts rejected Exxon’s attempt to litigate in federal court and remanded the state of Massachusetts’ lawsuit back into state court.
However, the climate change fraud cases haven’t all gone in the favor of the plaintiffs. The New York State court suit alleged Exxon deceived investors about climate change related risks to its business. The judge in that case found that New York failed to prove Exxon made any material misstatements or omissions that mislead investors. As far as the fraud claims in the Hoboken case go, the city alleges that from the 50s through the 80s the defendants concealed the harms of fossil fuels from the public, despite studying the impact on global climate. The city alleges that beginning in the 80s, the defendants orchestrated massive campaigns to discredit the valid climate science their own scientists had developed, and in the present day, the defendants have now launched “greenwashing” campaigns that feign concern about climate change and promote nonexistent commitments to sustainable energy.
As the suit was only commenced last week, none of the defendants have responded to the allegations. Nevertheless, we expect the defendants to mount an aggressive defense against the city’s claims.