Taking on Fossil Fuel

For nearly a week in June 2021, Oregon’s Multnomah County, where Portland lies, broiled under a heat dome that brought the hottest temperatures ever experienced in the area. The thermometer reached 108, 112 and 116 degrees Fahrenheit on three consecutive days. More than 60 people in Multnomah County died, and streetcar power cables melted.

Jeffrey B. Simon believes the blame lies with the fossil fuel industry. His firm, Simon Greenstone Panatier in Dallas, and their co-counsel are suing more than a dozen companies and industry insiders for $52 billion in damages and future costs for climate adaptation, on behalf of the Oregon county.

“Multnomah County leadership asked us to review the science, the liability facts and pertinent law to determine if their legal rights had been violated during the 2021 Pacific Northwest heat dome,” says Simon, a plaintiff’s personal injury attorney. “We determined they had a very compelling claim against several major players in the fossil fuel industry.”

The Defendants

Defendants in the suit include Exxon, Chevron, British Petroleum and Shell. “Broadly speaking, they are major oil, coal and fuel producers, along with some trade organizations and public relations firms that we contend assisted those companies in what we allege to be a misinformation campaign about the environmental impact of their fossil fuel activities,” Simon says.

The average high temperature in June in Multnomah is in the 70s—and had been for 125,000 years, according to Simon. “Forty percent of the county’s residents had no cooling systems in their homes because they never before needed them,” he says.

The suit accuses the fossil fuel industry of ignoring climate change. “We contend, based on research we’ve done, that defendants knew decades ago that carbon emissions from fossil fuel products they sold were polluting the atmosphere at a high rate and would cause the surface temperature of the Earth to substantially rise,” Simon says. “We allege that several companies deliberately misled the American public.”

Multnomah County, he says, spent tens of millions of dollars on emergency health care, social services and infrastructure repair.

Which Venue?

Simon Greenstone Panatier and their co-counsel filed the suit in Oregon state court, and the defendants asked to have it moved to federal court. In April, U.S. District Court Magistrate Youlee Yim You recommended that the case be returned to the state court, and the final venue decision now rests with the U.S. District Court.

Multnomah County’s suit is not the first one to claim that the fossil fuel industry is responsible for climate chaos. In Held v. State of Montana, a group of youths accused their state of violating their state constitutional rights to a healthy environment by promoting fossil fuel extraction. The court agreed, striking down a pair of state laws that forbade courts and state agencies to take into consideration the climate impacts of proposed projects.

And in Juliana v. United States, another group of young people claimed the U.S. government was violating their constitutional rights by failing to address climate change. However, the Ninth Circuit denied standing to the plaintiffs because legislative action would have been needed to remedy the alleged injuries.

Why This Case is Unique

Simon says the Multnomah case is different from previous ones. “Our case is based on very traditional, well-established theories in tort law, rather than some novel thesis in law,” he says. It is based, he explains, on “long-established theories of tort law, negligence, fraud, trespass, and creation of public nuisance.”

Published studies, Simon says, have found a link between fossil fuel pollution and Multnomah’s heat wave. “One study, a paper by [Samuel] Bartusek,” he says, “found that the key event that hit the Pacific Northwest would have been virtually impossible in the absence of carbon pollution-induced climate change.”

Simon has written a book, released last December, called Last Rights, which argues that the civil jury trial is critical to restoring public health from wrongdoing. “Lots of people get harmed from defective products, or environmental pollution, or defective drugs, or toxic spills in spite of the existence of regulations,” Simon says. “The laws that were intended to protect them too often don’t. And when that happens, the only means for holding those companies accountable for the harm they caused is the civil justice system and its cornerstone, the right to trial by jury.”