Internal combustion engine exhaust contributes to climate change, and the companies that put them in cars and trucks may soon be in the crosshairs of activist communities that are already suing the businesses producing the fossil fuel those vehicles run on.
“Over the course of the summer, five California municipalities filed statements of claim against many of the world’s largest oil and gas companies—including ExxonMobil, Chevron, BP, Shell, and Canada’s Encana—claiming that these companies should be liable for the current and future costs incurred by these municipalities as a result of climate change,” writes Martin Olszynski, an assistant professor of law at the University of Calgary, on the Energy Collective blog.
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The city of Victoria, B.C., has also served 20 of the world’s biggest fossil producers—including ExxonMobil, Chevron, and Shell—with a request letter asking them to help cover the costs  that the community stands to incur to address the impacts of climate change. West Coast Environmental Law, the legal advocacy group that supported the letter, announced  yesterday that the Vancouver Island city of Colwood had become the fourth B.C. to sign a similar missive.
Now, says Olszynski, “the world’s top automobile manufacturers could be next in the defendant line.” What sets automakers up for liability is a set of attributes their actions share not only with fossil fuel producers, but with the earlier behaviour of the tobacco industry.
Olszinski quotes Michael Burger, Executive Director of New York’s Sabin Centre for Climate Change Law, who summarized the moral centre of the fossil fuel case: “These companies knew,” he said. “They knew that climate change was happening, that fossil fuel production and use was causing it, and that continued fossil fuel production and use would only make it worse. They knew this, but they hid it. And then they lied about it, and paid other people to lie about it for them. All the while they profited from it, and plotted to profit more.”
The same case, Olszynski suggests, may be made against automakers. “The argument would be that automobile manufacturers breached the applicable standard of care by selling—and continuing to sell—internal combustion engine (ICE) vehicles whose cumulative emissions create a reasonably foreseeable risk of harm to the plaintiffs by virtue of their contribution to anthropogenic climate change.”
Carmakers, he speculates, would claim they complied with applicable regulatory standards. But “Canadian law is also clear that mere compliance with regulatory standards is not determinative of liability in negligence.”
Olszynski finds further evidence for the carmakers’ potential liability in the differential effort they have made to promote ICE engines compared to electric vehicles, while claiming to be following rather than forming market preferences.
Collectively, America’s big three automakers—Chrysler, Ford, and General Motors—spent nearly US$10 billion on advertising in 2014, he notes. “That seems like a lot of money to spend on something that the industry claims to not control.” Ford’s campaigns promoted the ICE version of its Focus sedan 24 times as often as the zero-emission option for the same model.
In Canada, he adds, car companies frequently promote efficiency and emission claims for light cars, but neglect to provide comparable performance metrics for more polluting—and more profitable—light trucks.
“In my view, it is at least arguable that the automobile industry is—and has been for some time—in breach of its duty to warn consumers of the climate change risks associated with its ICE model vehicles, creating a reasonably foreseeable risk of harm to plaintiff municipalities.”