In a Federal District Court in San Francisco, five oil companies argued before a judge on facts that uphold the 95-100 percent likelihood that human activity has been the dominant cause of the global warming of Earth since the mid-20th century. In 2017, the cities of Oakland and San Francisco and the State of California filed lawsuits against Chevron, ExxonMobil, ConocoPhillips, Royal Dutch Shell, and British Petroleum (BP), the five largest investor-owned producers of fossil fuels in the world, which are considered responsible for over 11 percent of all carbon dioxide and methane pollution that has accumulated in the atmosphere since the Industrial Revolution. That these oil producers agreed to the role they are playing in climate change is worth noting.
The Setting: Federal District Court, San Francisco
In 2017, the cities of Oakland and San Francisco, along with the State of California, filed lawsuits against Chevron, ExxonMobil, ConocoPhillips, Royal Dutch Shell, and British Petroleum (BP). The cities sued for the cost to pay for sea walls and other shoreline defenses to protect against rising sea levels that could inundate airport runways, roads, coastal homes, and businesses. The cities claimed sea-level rise is being caused by a warming ocean and glacial melt from increasing atmospheric CO2 levels released when fossil fuels are burned. The case was assigned to Judge William H. Alsup of the Federal District Court, San Francisco. Alsup, who has a degree in mathematics, invited the parties to present a two-part tutorial on the subject of global warming and climate change “so the poor judge can learn some science — it helps to have science. This is a serious proposition to try to educate the Judge.” Alsup did not want politics in the tutorial — just the science. He requested the following two areas be addressed in the tutorial:
(1) “The first part will trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historical cooling and warming, smog, ozone, nuclear winter, volcanoes, and global warming. Each side will have 60 minutes. A horizontal timeline of major advances (and setbacks) would be welcomed.”
(2) “The second part will set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding. Each side will again have another 60 minutes.”
With these two subject areas, Alsup appeared interested to see some of the classic climate-skeptic arguments fought out, face to face, in his courtroom. Read on for what happened.
Before the hearing started, Michael Burger, executive director of the Sabin
Center for Climate Change Law at Columbia University, told Earth magazine that the hearing wasn’t to be a trial and he didn’t think it would look like one. “This will be the first instance where these companies have to go on the record in response to a series of particular questions about climate science,” he said. “What will be different … is that the fossil-fuel companies have to go into court and respond to questions that get at arguments they and their representatives have relied on in one form or another for years, to question the degree of certainty around climate science.”
The hearing was conducted on March 28, 2018, in Judge Alsup’s courtroom and lasted five hours. People lined up for hours before the courtroom doors were opened, and when they were opened, the courtroom became packed to standing room only. A second courtroom was opened so that those who did not get into the hearing room could watch the presentations on closed-circuit TV.
As is normal, the cities, as plaintiffs, were first to give presentations. Myles R. Allen, an Oxford University professor of geosystem science with over 120 peer-reviewed articles involving different aspects of atmospheric science, outlined the early history and research regarding climate science. Allen has worked for the Intergovernmental Panel on Climate Change (IPCC) for over 20 years as a lead author on the 3rd, 4th, and 5th assessments. The IPCC is an intergovernmental body of the United Nations that is dedicated to providing the world with objective, scientific information relevant to understanding the scientific basis of the risk of human-induced climate change; its natural, political, and economic impacts and risks; and possible response options. The assessments are status reports that provide an update on the knowledge of the scientific, technical, and socioeconomic aspects of climate change. Thousands of scientists from countries all over the world do the work of the IPCC.
Allen told Judge Alsup that the role of greenhouse gases such as CO2 and methane as they affect the Earth’s temperature has been known since the mid-1800s. As greenhouse-gas levels increase in the atmosphere, the atmosphere retains more infrared radiation, heating it up. As a consequence, the Earth heats up as well. “We’re seeing carbon dioxide levels rising to levels that have not been seen for over 20 million years,” Allen said. “They are now … around 410 parts per million.” In 1853, according to NASA data, the levels were 285 parts per million. In 165 years, CO2 levels have increased by 44 percent. Allen presented graphs dating from 1861 showing the monthly temperature of the Earth increasing with periodic swings in both directions.
Next, Gary Griggs, professor of earth sciences at UC Santa Cruz with over 190 peer-reviewed articles on oceanography, shoreline processes, coastal protection, and hazard analysis, spoke about the relationship between climate change and sea-level rise. Griggs explained the role of Earth’s changing orbit and axis tilt and wobble that have brought ice ages and past changes in climate. He also explained the role of what he called “positive feedback loops” and how they push climate change along. For instance, as more CO2 is emitted, the heat-trapping properties of the atmosphere increase, raising Earth’s temperature. As the temperature rises, glaciers and sea ice melt, exposing darker surfaces underneath. Normally, glaciers and sea ice reflect and deflect the sun’s rays, keeping the land and ocean cold. But as they melt, the darker surfaces below are able to absorb heat, melting more glacial and sea ice, which creates a feedback loop. In this way, glaciers and sea ice help to moderate Earth’s temperature by reflecting back the sun’s rays and keeping what’s below cold. Without them, the darker surfaces absorb heat and contribute to further heating of the planet. Griggs also pointed out another feedback loop created with the melting of permafrost. Permafrost is frozen ground in the northern latitudes, including Siberia, northern Alaska, and Canada. Trapped in permafrost is methane — another greenhouse gas, which is 84 times more potent than CO2. With global heating, permafrost melts — and is melting — releasing large quantities of methane into the atmosphere, which in turn further increases its heat-trapping capability that in turn leads to further increased temperatures. In September 2019, National Geographic reported that methane was beginning to be released from Siberia and Alaska’s permafrost sooner than expected. According to National Geographic, “Within a few decades, if we don’t curb fossil fuel use, permafrost could be as big a source of greenhouse gases as China, the world’s largest emitter, is today.”
Griggs then moved onto the subject of sea levels and sea-level rise. A 2018 report by the California Ocean Protection Council says that sea levels along the Pacific Coast are increasing at rates far sooner than have been predicted, and that under a continued high greenhouse-gas rate of emissions without reductions, sea levels are predicted to rise by 2.3 feet by 2050. Griggs said scientists are concerned about sea-level rise because 200 million people around the Earth live within three feet of a high tide, which is already rising today, and much of this population is centered along the coast or in major cities with a lot of infrastructure that will be at risk.
In Santa Barbara, California, the staff of the city’s Community Development Department reported in January 2020 the following: “Although Santa Barbara has experienced a relatively small amount of sea-level rise to date from climate change, the rate of sea-level rise in the region is expected to accelerate significantly in upcoming years. The State of California’s current conservative sea-level rise projections for the Santa Barbara area are 0.8 feet by 2030, 2.5 feet by 2060, and 6.6 feet by 2100 (Ocean Protection Council, 2018). If no action is taken, 6.6 feet of sea level rise could result in increased flooding and erosion hazards on more than 1,250 parcels in the City.”
Griggs then showed slides of what sea-level rise will mean for the Oakland
International Airport. He told Judge Alsup that an extra one foot of water would be disastrous to the airport and bay front areas of the East and South San Francisco Bay. During El Niño years, high tides can become even higher, causing an increase in sea level over that of global warming caused sea-level rise.
In Judge Alsup’s courtroom, the next speaker for the cities was Don Wuebbles, a leading climate expert from the University of Illinois Urbana-Champaign’s Department of Atmospheric Science. Wuebbles has published over 500 peer-reviewed articles involving different aspects of atmospheric science and has been a co-author on numerous Intergovernmental Panel on Climate Change reports as well as the “Climate Science Special Report,” which he called the most comprehensive report of its kind ever conducted by the U.S. There have been four of these special reports since Congress passed the Global Change Act in 1990, the most current one published in 2017. These reports go through six levels of review: first by the public, then by the National Academy of Sciences, and finally by four U.S. agencies before they are released. Wuebbles began his presentation with the following statements, supported by the most recent data.
“Our climate is changing, it’s changing very very rapidly, and it’s happening now,” Wuebbles said. “About 10 times faster than any other changes we’ve seen since the end of the last ice age. So it’s very unusual, certainly in human experience. It’s not just the temperature that is changing; we’re seeing severe weather becoming more intense in many cases. We’ve had a lot of discussion today about sea-level rise, and certainly sea level is rising. The evidence strongly indicates it’s largely happening because of human activities. The climate will continue to change over the coming decades, no matter what we do, but certainly our choices for the future could make a strong impact on just how large those changes are.”
Wuebbles presented examples of a number of feedback loops, based on the publicly stated fact that over the last 50 years, the global average temperature “has increased dramatically.” He added that even when factoring in the Medieval Warm Period and the Little Ice Age, the current temperatures are well above anything the Earth has experienced in the last 2,000 years. Wuebbles also explained the changes in precipitation patterns occurring across the United States, coupled with the general warming trend, which are changes that don’t happen evenly. According to Wuebbles, multiple lines of evidence support the existence of climate change: Land and sea surface temperatures are increasing, lower atmosphere temperature is increasing, the heat content of the ocean is increasing, the average humidity of the atmosphere is increasing, and the extent of Arctic sea ice is shrinking, as is the mass of the Earth’s glaciers. These lines of evidence point to the same conclusion: The Earth is heating up.
In the courtroom, Wuebbles described how climate change is affecting Americans to date. NOAA has been tracking what it refers to as “Billion-Dollar” events since 1980. These are weather- and climate-related events that cause at least $1 billion in infrastructure and crop-related damage. Since 1980, the number of these events has been increasing, as well as their cost, in billions of dollars. Adjustments for inflation were made to the data set.
Wuebbles pointed to the increasing trends in California wildfires, which are bigger and burning hotter than ever before, a trend he says is expected to continue because California is an area prone to drought, and dry periods are expected to increase in the southwest and southeast of the country. Across the U.S., the fire season is now three months longer than it was 40 years ago. With an increase in temperature, the atmosphere holds more moisture, which means more rain will fall when it does rain. This increases the risk of flooding in these areas already prone to flood. Atlantic hurricanes are increasing in intensity because of warmer ocean temperatures, a trend that is also expected to continue. Another trend: There are now more heat records than cold records. Seventeen out of the last 18 years on record are the warmest years since 1881. This is more proof that the Earth is heating up.
Chevron Presents Its Case
Of the fossil-fuel industry, only Chevron gave a presentation, with representatives of four other oil companies in the audience. Chevron was represented by Theodore Boutrous Jr., an attorney with the firm Gibson, Dunn & Crutcher. Boutrous did not deny the science behind climate change and based his presentation on the Intergovernmental Panel on Climate Change’s (IPCC) Fifth Assessment Report, published in 2013. Dr. Myles Allen, who had been the first presenter in this courtroom hearing, had been the lead author on the Fifth Assessment report. The assessments are status reports that provide an update on the knowledge of the scientific, technical, and socioeconomic aspects of climate change.
“Chevron accepts the consensus in the scientific communities on climate change,” said Boutrous. “There’s no debate about climate science.” Boutrous made the case that oil companies are not directly responsible for climate change. Rather, he said, humanity’s larger economic decisions are to blame. Boutrous told Judge Alsup that the “IPCC does not say it’s the extraction of fossil fuels [that causes climate change], it’s the energy use — the economic activity — that generates emissions.” Boutrous deflected the blame to users of fossil fuels. In other words, oil doesn’t cause climate change. People burning oil causes climate change.
With these admissions being made by Chevron, Judge Alsup wanted to hear from the other oil companies in the room. He ordered British Petroleum, ConocoPhillips, ExxonMobil, and Royal Dutch Shell, all of which had been named in the lawsuit, but which had representatives at the hearing — to submit briefs within two weeks detailing any points of disagreement with Chevron. “Otherwise, I’m going to assume you’re in agreement,” Judge Alsup said. “You can’t get away with sitting there in silence and then later say, ‘[Boutrous] wasn’t speaking for us.’” Alsup told the attorneys for the other companies, “You have two weeks to tell me if he [Boutrous] said something you disagree with.” The oil companies came back with the following:
1) ConocoPhillips: “ConocoPhillips Company understands that Chevron Corporation based its March 21 global warming and climate change science tutorial presentation on the IPCC science assessments, and in particular the 2013 Fifth Assessment Report (AR5). ConocoPhillips Company does not disagree with the points made in the Chevron Corporation tutorial presentation on March 21, 2018.”
2) Royal Dutch Shell (RDS): “Although Royal Dutch Shell [RDS] does not necessarily adopt each statement contained in the various IPCC reports, RDS agrees that those reports are an appropriate source of information for the Court to consider to further its understanding of the timeline and science surrounding climate change, and RDS does not disagree with Chevron’s presentation of that material.”
3) British Petroleum (BP): “BP [British Petroleum] does not disagree with the tutorial presentation made by Chevron on March 21, 2018, and believes that it fairly responded to the Court’s tutorial request and questions.”
4) ExxonMobil: “ExxonMobil offers this statement in response to the Court’s order seeking an explanation regarding the extent to which ExxonMobil is aligned with statements made by counsel for Chevron:
• The risk of climate change is clear, significant, and warrants comprehensive policies to understand and address the risk.
• The climate system is warming in part due to increased concentrations of greenhouse gases in the atmosphere.
• Human activities, including the combustion of coal, oil, and natural gas — and driven largely by population size, economic activity, lifestyle, energy use, land use patterns, technology, and climate policy — have increased the concentration of greenhouse gases in the atmosphere.
• IPCC Assessment Reports provide contemporaneous analyses of existing climate science research. The Assessment Reports are a reference point for understanding how scientific knowledge and confidence regarding human influence on climate have evolved over the past 30 years.”
In this manner, the oil companies attested to Judge Alsup that they agreed with Chevron’s presentation and offered no corrections to the record. Royal Dutch Shell went further and told Alsup that “the IPCC reports collect and assess information from a wide variety of sources including thousands of scientists around the globe and present a broad-based consensus view regarding climate change science.”
This last statement is noteworthy coming from a large oil company, that a consensus view in fact does exist regarding climate-change science.
These are important and substantial statements by ExxonMobil, in that the oil company is verifying human cause of climate change. It is not coming from solar activity. It is not caused by the tilt of the Earth on its axis. It is not caused by volcanic activity. Additionally, by agreeing that the IPCC reports present a broad-based consensus view of climate-change science, the oil companies systematically and methodically nullified some common skepticisms: 1) Climate scientists are “in” on a climate hoax; 2) There’s no 97 percent climate consensus; 3) Climate change is just a “theory”; 4) There is still “uncertainty” about climate change; 5) There is still a “climate debate …the science isn’t settled”; 6) Temperature and CO2 levels are within the range of natural variation; 7) How can we predict next year’s climate when we can hardly predict next week’s weather?; 8) We breathe out CO2 and plants need it, so how bad can CO2 be?; and 9) The Earth is not warming up, but if it is, it’s okay because it’s natural.
The significance of the oil companies’ statements and admissions in Judge Alsup’s courtroom regarding climate change and sea-level rise was characterized by Jessica Wentz, a lawyer with the Sabin Center for Climate Change Law at Columbia University. After watching the entire hearing, Wentz said, “You have (representatives) for fossil fuel companies on the record conceding the fundamentals of climate change,” she said. “It could be the first time such a clear admission” that sea-level rise is linked to human activity (has been) presented in a court setting,” she said. “When these biggest of the oil companies are willing to say, clearly and unambiguously, that man’s burning of fossil fuels warms the planet, it means the terms of debate have fundamentally shifted towards solutions to replacing our dependence on fossil fuels and finding the most reliable sources of renewable energy that will not jeopardize the habitability on the Earth,” Wentz said.
Judge Alsup Comments On the Testimony Presented and Issues an Order
Judge Alsup, who had kept pace with the presentations in his courtroom, said the court “fully accepts the vast scientific consensus” that the burning of fossil fuels is leading to an increase in global temperatures to increase and to “accelerated sea-level rise.” He said the following in his order:
“These actions arise out of a vital function of our atmosphere — its thermostat function — that is, keeping the temperature of our planet within a habitable range. The atmosphere hosts water vapor and certain trace gases without which heat at Earth’s surface would excessively radiate into space, leaving our planet too cold for life. One of those trace gases is carbon dioxide, a gas produced by, among other things, animal and human respiration, volcanoes, and, more significantly here, combustion of fossil fuels like oil and natural gas. As heat radiates skyward, some of it passes close enough to molecules of carbon dioxide to be absorbed. These molecules then re-radiate the energy in all directions, including back toward Earth’s surface. The more carbon dioxide in the air, the more this absorption and re-radiation process warms the surface. It turns out, that even trace amounts of carbon dioxide in the air suffice to warm the atmosphere. The science dates back 120 years.
“In 1957, oceanographer Roger Revelle and chemist Hans Suess published a critique of a then-prevailing view that the oceans would absorb excessive airborne carbon dioxide and thus reduce the risk of an atmospheric buildup of carbon dioxide. Referring to the ongoing combustion of fossil fuels and release of carbon dioxide, they concluded: ‘[h]uman beings are now carrying out a large-scale geophysical experiment of a kind that could not have happened in the past nor be reproduced in the future.’”
Even with this warning, the alarm bells over climate change did not sound until 1988, when the United Nations established the Intergovernmental Panel on Climate Change (IPCC). “Its main objective was to prepare — based on the best available scientific information — periodic assessments regarding all aspects of climate change, with a view of formulating realistic response strategies.… The IPCC completed its first assessment report in 1990….” The report made a persuasive case for man-made interference with the climate system, and each subsequent report (about five to six years apart) incorporated advancements in measurements, observations, and modeling — and each presented a more precise picture of how our climate has changed, and what has changed it. The fifth assessment report, released in 2013, was abundantly clear:
“Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades and millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.”
Judge Alsup’s order goes on: “The report was also clear as to the cause, stating that it was ‘extremely likely’ that ‘human influence has been the dominant cause of the observed warming since the mid-20th century.’”
Alsup acknowledged other causes at play. “The science acknowledges that causes beyond the burning of fossil fuels are also at work. Deforestation has been and remains a significant contributor to the rise in carbon dioxide. Others include volcanoes and wildfires in greater numbers. Nevertheless, even acknowledging these other contributions, climate scientists are in vast consensus that the combustion of fossil fuels has, in and of itself, materially increased carbon dioxide levels, which in turn has materially increased the median temperature of the planet, which in turn has accelerated ice melt and raised (and continues to raise) the sea level.”
In His Order, the Judge Concluded:
“The issue is not over science. All parties agree that fossil fuels have led to global warming and ocean rise. In the last 120 years, the amount of carbon dioxide (and methane) in the air has increased, with most of the increase having come in recent decades. During that time, the median temperature of Earth has increased 1.8 degrees Fahrenheit. Glaciers around the world have been shrinking. Ice sheets over Greenland and Antarctica have been melting. The sea level has risen by about seven centimeters since 1993 (about seven to eight inches since 1900). As our globe warms and the seas rise, coastal lands in Oakland and San Francisco will, without erection of seawalls and other infrastructure, eventually become submerged by the navigable waters of the United States.
“This Order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise.”
The 2017 courtroom drama in which Judge William Alsup, in his San Francisco Federal Courtroom, insisted on answers from five of the largest investor-owned producers of fossil fuels in the world is historic. Under questioning, did these companies not testify their responsibility for over 11 percent of all carbon dioxide and methane pollution that has accumulated in the atmosphere since the Industrial Revolution? Did they not agree with the IPCC that it is 95-100 percent likely that human influence has been the dominant cause of the observed global warming since the mid-20th century?
It is now a matter of record that they did.
We as the human race can no longer look the other way at this impending calamity. For ourselves and for our children, the time to act is now.
The author is an attorney practicing in Santa Barbara, a California Regional Water Quality Control Board Member, and a City of Santa Barbara Water Commissioner.
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