THE BLOG

Could This Be Payback Time For Big Polluters?

11/20/2014 01:02 EST | Updated 01/20/2015 05:59 EST

We're gratified that Suncor, one of Canada's largest oil sands companies, has taken the time to read -- and publicly disagree with - our recent report, Payback Time. Payback Time examined the risks to Suncor and other Canadian fossil fuel companies of lawsuits brought by the victims of climate change outside of Canada. 2014-11-14-PaybackTimeCover.jpg

Suncor responded with a blog post entitled "What to do when everyone is the problem" that cleverly attempts to downplay Payback Time as just one of several efforts to single out a culprit for climate change. Suncor then argues that we are all to blame, suggesting that singling Suncor out for special blame is simply wishful thinking on the part of equally blame-worthy polluters (ie. the general public).

Some groups are quick to single out individual countries, based on GHG emissions volumes generated within their borders. Others point the finger at specific industrial sectors which generate significant GHG emissions. Some lay the blame squarely on corporations which produce energy [linking to Payback Time] from fossil fuel sources.

The hard, undeniable truth is that all of us, as fortunate members of the developed world, are complicit when it comes to GHG emissions....

We have heard the message that we are all responsible for climate change over and over again, and at a certain level this is true -- but, we are not all equally responsible for climate change.

Suncor's rhetoric conveniently side-steps questions of who should pay for the damage caused by climate change (and what portion) and whether major greenhouse gas emitters might be held legally responsible for climate change (which was the actual focus of Payback Time).

Producer liability

Suncor argues that fossil fuel companies should not be held responsible because they are not causing the bulk of greenhouse gas emissions -- it's just their product, they aren't the ones burning/consuming it: "Up to 80 per cent of GHG emissions from each barrel of oil are produced at the point of consumption." The company makes this point even more clearly in an earlier blog post that accused researcher Richard Heede's ground-breaking Carbon Major's report of "scape-goating" fossil fuel companies:

In the study, all GHG emissions resulting from the consumption of the companies' energy products by consumers and businesses have been erroneously attributed to the companies themselves.

As we've explored in previous OSQARs, 70-80 per cent of GHG emissions occur from combusting fossil fuels in our planes, trains and automobiles.

Heede's study, of course, is quite upfront about the fact that it is attributing the greenhouse gases from burning fossil fuels to the companies that extracted, processed and sold those fossil fuels.

And why not? A fossil fuel company sells each barrel knowing that the vast majority of it will be burnt, and contribute to global warming. Suncorp's product is non-renewable, greenhouse gas producing oil.

The law expects the manufacturers of products to be responsible for their products when the product is used as intended. Tobacco companies didn't (in the end) escape liability (even from the victims of second hand smoke) by pointing out that it was the individual cigarette smokers that lit up. Asbestos manufacturers didn't win their cases on the grounds that no one forced people to put asbestos into their homes, thank you very much.

Society as a whole saw jobs created, collected tax dollars and bore at least some of the blame, for the harm caused by both tobacco and asbestos. And yet this did not absolve the manufacturers of responsibility for the damage caused by their product.

So yes, we are all responsible for greenhouse gas emissions, but fossil fuel companies are much more responsible, and benefit financially in a much more significant way, than most of us. While it's hard to picture a world where no one uses energy products, it's relatively easy to imagine a world where energy from fossil fuel products plays a much more limited role. We can make insulation without asbestos, and we can produce energy without burning fossil fuels. Incorporating the full costs of producing fossil fuels into the business model for energy companies is a reasonable proposition, and the law of torts offers one pathway to accomplish this.

David Grossman, in his classic 2003 paper, Warming up to a not-so-radical idea: Tort-based climate change litigation, gave several reasons why it is appropriate to hold fossil fuel companies and other large-scale emitters, instead of the users of the fossil fuels:

  • Individual consumers such as drivers and users of electricity do not contribute "substantially" to climate change and would not meet the standards for legal causation.
  • Individual consumers have few meaningful alternatives to fossil fuels and the products that rely upon them.
  • Tort law's goal of reducing the cost of accidents would be furthered by holding liable producers who can incorporate the various costs of climate change into the prices of their products.
The reality is that Suncorp's product and operations are already causing tens of billions of dollars in damages globally, and the company and its shareholders benefit financially. The full cost of their product is not reflected in its cost. One cannot keep up that business model and not expect calls for compensation. This isn't about scape-goating -- it's about equity, making sure that the polluter pays and the practical reality that paying for climate damages is going to cost a lot.

Interestingly, Greenpeace International recently made the same point in a blog post -- Payback time for big polluters? - citing our report - Payback Time and our calculations about Suncor's possible liability. They conclude: "In the coming weeks we will have more information to share with you about how we are helping people to hold the big polluters accountable."

The discussion of who should pay for climate change may happen in the courts, it may happen in legislatures or parliaments around the world, or it may happen in international negotiations, but Suncor should not be surprised when it happens.

ALSO ON HUFFPOST:

Landmarks That Climate Change Could Ruin