Oakland climate change lawsuit
Though a federal judge has just thrown out the climate change lawsuits filed by Oakland and San Francisco against the world’s largest fossil fuel companies, the fight is not yet over. As John Coté of the San Francisco City Attorney’s Office stated after the court’s ruling, “our belief remains that these companies are liable for the harm they’ve caused.” Though the decision was “not the ruling we wanted,” Coté said, “this doesn’t mean the case is over.”
This pause in the legal proceedings presents a great opportunity to examine an important yet widely overlooked climate justice claim that the City of Oakland included in its lawsuit and that deserves more attention. It reads:
“Many of the Oakland residents who are likely to be most affected by climate change are low-income and/or people of color. As the U.S. government has pointed out, people of color, low-income groups, and certain immigrant groups are (e.g., because of poverty, chronic health conditions, and social isolation) potentially more ‘vulnerable’ to climate change impacts, including heat waves, flooding, and degraded air quality. This is true in Oakland, where ‘socially vulnerable’ individuals such as African Americans, Hispanics and other people of color tend to live at lower elevations most affected by sea level rise and higher storm surges. These populations also face challenges due to the legacies of slavery, such as redlining, predatory mortgage and other lending, systemic racism and discrimination in securing insurance and other assets that would protect them from the consequences of global warming and the ensuing climate change. More affluent residents live farther from the Bay and at higher elevations. For example, of the City of Oakland population that lives on land within three vertical feet of the current local high tide line, more than 70% have been categorized as having high ‘social vulnerability.’ This makes it all the more imperative for the People to act now to prevent harm, as those most vulnerable have the fewest resources to protect themselves.”
This claim, a version of which appears in San Francisco’s lawsuit, is crucial for a number of reasons. First, it indicates the City of Oakland recognizes that climate change impacts will reflect and even reinforce fundamental inequalities in Oakland. Second, it shows that the City is at least willing to say, as it has done in other contexts, that it is committed to addressing the needs of its most vulnerable residents in the face of catastrophic sea level rise. Finally, it suggests that the City considers fossil fuel companies’ distortions, cover-ups, and outright lies about the risks of fossil fuel use, acts that will further harm “socially vulnerable” communities, at least inasmuch as the deceptions will exacerbate existing inequalities. With this claim, then, the City of Oakland has litigated climate change as inextricable from social justice concerns.
As laudable as it is, however, the claim is nevertheless deeply unsettling. While the City of Oakland rightly underscores the social and climate vulnerability of its low income “and/or” residents of color, as well as the “legacies of slavery,” it subtly sets itself apart from the vulnerabilities and legacies of which it speaks. This then frees the City to claim – in spite of developments in Oakland that suggest otherwise, and in which the City is implicated – that the benefits of sea walls and other “protective infrastructure” will actually accrue to low income and/or communities of color. At the same time, it also enables the City to use its shared status as climate victim to frame implicitly the construction of protective infrastructure as climate justice.
To be sure, given the trajectory of climate change, Oakland will suffer “serious climate change injuries that will require billions in expenditures to abate the global warming nuisance,” as the City rightly claims in its lawsuit. It is especially on track for “catastrophic” flooding, storm surges, and coastal erosion, for “global warming has caused and continues to cause accelerated sea level rise in San Francisco Bay and the adjacent ocean.” Thus, by the year 2050, Oakland can expect to experience a 100-year flood “on average once every 2.3 years.” By the year 2100, “Oakland is projected to experience up to 66 inches of sea level rise.” If these predictions prove correct, Oakland will surely need those sea walls, and to the degree that the fossil fuel companies are responsible for climate change and the ensuing nuisance of rising seas (they are), they should certainly have to cough up the “abatement fund remedy” Oakland (and other cities) hopes to collect.
Yet, we need to ask ourselves whether and to what degree Oakland’s “socially vulnerable communities” will actually benefit from sea walls and other protective infrastructure. After all, right now, these communities are experiencing relentless gentrification and displacement, processes due in part to many of the urban development policies and practices forged by city officials, the business community, and wealthy residents, as well as by the state of California. In other words, the City is increasingly becoming a playground for the affluent who can afford to purchase (and who are driving up the price of) homes in Oakland or to pay the City’s astronomical rents (between 2012 and 2017, Oakland rents have increased by as much as 51.1 percent and are, consequently, among the highest in the nation).
In its Urban Displacement Project study, the University of California (Berkeley) reported that in the year 2015, “more than half” of the Bay area’s low-income households lived in “neighborhoods at risk of,” or were “already experiencing displacement and gentrification pressures.” Moreover, between 2013 and 2015, the rate of gentrification and displacement “accelerated most quickly in Oakland’s neighborhoods.” While gentrification and displacement in Oakland have been in process for decades, they have accelerated since the turn of the century and especially during the recent Great Recession. Since 2000, for example, the City “lost 30 percent of its black population,” and between the years 2010 and 2014, “28 percent of those leaving Oakland made less” than $30,000 a year. These processes have not let up. Many of the people displaced moved further inland to less affluent areas, where in the future they will face not rising seas, but instead punishing waves of heat.
It is entirely conceivable, then, that by the time the seas rise to a catastrophic level, a significant number of Oakland’s socially vulnerable residents will be long gone. (While “Oakland has already begun to feel injury from sea level rise,” the City claims, “its most severe injuries by far are the injuries that will occur in the future if prompt action is not taken to protect Oakland and its residents”). Consequently, the more affluent (primarily white) who will have taken their place will likely be the main beneficiaries of the City’s sea walls and other protective infrastructure. This is not to argue, of course, that the City should not protect the affluent; instead, it is simply to point out that the realities of gentrification and displacement trouble the City’s climate justice claim.
The relentless transformation of Oakland into a playground for the affluent reminds us that the City has always played a role in creating the social, economic and political conditions that have rendered its low income and/or communities of color vulnerable, and because the City has played a role, it has had a hand in creating these communities’ climate vulnerabilities.
For example, the “low-lying” West Oakland community is “historically black” not only because African Americans migrated there in search of jobs during the World War II era; but also because, in the past, white city officials, businesses, and residents adopted and implemented racist policies and practices designed to exclude African Americans from the rest of the city. What this means, of course, is that black people do not “tend to live” in this flood zone area (by using the phrase “tend to live” in its lawsuit, the City suggests that segregation, of all things, is a matter of happenstance). Instead, for decades white city officials and residents actively prevented black people from living in other parts of the city – especially the flood-safe, higher-elevation Oakland hills. The fact that “more affluent residents” live in the hills is itself a consequence of, and testament to, decades of racist and anti-poor urban planning. The City’s obfuscation of this history should give us pause and compel us to look more critically at the climate justice it purports to pursue.
Ironically, the City’s past unjust policies and practices, coupled with those of the federal government, arguably made low income and/or communities of color less culpable regarding greenhouse gas emissions. After all, for decades they limited vulnerable communities’ mobility and labor opportunities. For example, federal, state, and local real estate and lending practices, such as redlining, high interest lending, and the outright refusal by banks to offer loans, operated to exclude people of color in great measure from the Bay area suburbs while they simultaneously facilitated white relocation. Consequently, for many years socially vulnerable communities were not a significant a part of the commuting public that burned large quantities of fossil fuels to get to work, to air condition their homes, to recreate, and to shop.
As whites took advantage of Federal Housing Administration and other loans to move to the suburbs, the City sought to recoup the consequent loss of revenue by, among other things, encouraging and facilitating the further expansion of industrial development in West Oakland. This development not only increased the burning and transportation of fossil fuels in the Bay area; it also increased the exposure of the primarily black and poor residents who resided in West Oakland to environmental harms.
Even now, the City continues to adopt and advance development plans in West Oakland that will burden residents even more with fossil fuel exposure, as the environmental law firm Earthjustice claims in a recent lawsuit it filed against the City and the Port of Oakland. According to Earthjustice, both entities have been “forcing through freight expansion projects that disproportionately subject the communities of color that surround both the Port” and Oakland Army Base properties “to air pollution and other serious health threats on the basis of their race.” Not only have the City and the Port failed “to ensure adequate health and safety protections,” Earthjustice claims; they have also expanded “maritime, shipping, and transport activities” in ways that expose residents “to severe air pollution emissions without adequate mitigation.” (Of all communities in Oakland, Earthjustice notes, “West Oakland has one of the lowest life expectancies” – a fact partially attributable to its toxic environment).
None of these facts should keep us from appreciating the City’s inclusion of a climate justice claim in its lawsuit, and we should assume that it likely did so both in good faith and with the intention to address honorably our evolving climate crisis. Indeed, many of Oakland’s city officials are deeply concerned about climate change as well as equity and social justice, as the City’s Energy and Climate Action Plan shows. Adopted by the City Council in 2012, this ten year plan maps out actions the City will take to “achieve a 36% reduction” in greenhouse gas emissions. In recognition of the fact that the risks of severe climate impacts “are magnified for economically disadvantaged communities,” the plan also details actions the City will take to “increase community resilience” and “minimize vulnerabilities.”
Additionally, in 2015 the City Council unanimously approved its “Housing Action Plan and Policy Framework,” which addresses the affordable housing crisis and displacement of long-time residents. The Framework “establishes more than a dozen strategies to prevent tenant displacement.” It commits Oakland to “weigh in with the U.S. Congress and the Administration to supplement dwindling federal investments in affordable housing.” Finally, it charges Oakland to address “bad faith evictions” as well as evictions “of long-term residents”; to develop “a standard city tenant relocation policy”; and, to “fund city program operations.”
Yet, it matters that the City obfuscates in its lawsuit (and even, I would add, in its climate and housing plans) the role it has played in creating its residents’ vulnerabilities. It matters because it tells us that the climate justice to which Oakland is committed might itself be an obfuscation. That is, it indicates that the City’s notions of climate justice might not be justice at all since the City does not reckon with its own historic role in producing the “legacies of slavery” and, consequently, climate vulnerabilities. “Framing structural inequalities only in terms of susceptibility to harms,” writes feminist scholar Chris Cuomo, “focuses attention on the supposed weaknesses or limitations of those who are in harm’s way, but says little about whether injustices or other harms have put them in such precarious positions.”
Hence, the future that the City ultimately imagines in its lawsuit, and even in its climate plans, is one marked by the persistence of social vulnerability. That is, the City looks at the year 2100 and sees its sea walls protecting communities still suffering fundamental social and economic inequalities, rather than protecting communities no longer burdened by the legacies of slavery. While one could argue that this merely reflects Oakland’s realistic recognition of just how entrenched are social and economic injustices, one could also say that it constitutes a surrender of sorts, a surrender that casts our ability to survive catastrophic climate change as more realistic than our ability to create a just Oakland. At any rate, the effect of Oakland’s limited imagination is that it effectively reduces climate justice to building walls, rather than (for example) to building walls as a means to upend what created climate vulnerabilities and the climate crisis in the first instance.
Which brings us to one other thing that makes the City’s climate justice claim so unsettling.
Oakland sits squarely within the United States, a country that owes to other nations – island nations, nations of the Global South, and Native nations of the northern hemisphere, to name a few – a long overdue, unpaid climate debt. These nations did not cause the climate crisis. We did. Consequently, Oakland, too, is a debtor.
Nevertheless, Oakland – and San Francisco, and other U.S. cities, and other western nation cities – appropriates the climate debt framework by which these other nations have been holding the U.S. and other western states accountable. By so doing, it cloaks itself in a shroud of innocence – innocence regarding the political and economic plunder, powered by fossil fuels, from which Oakland has surely benefitted. Hence, the City has proceeded in court, and in the public sphere, as if it is not complicit in the production of climate changes that are beginning now to devastate other nations. Just as problematically, the City has proceeded as if it has nothing to do with how western nations have protected and empowered fossil fuel companies to secure western plunder and hegemony.
Nothing could be further from the truth.
None of this means that Oakland – or other U.S. cities, for that matter – should drop its suit against fossil fuel companies. Nor does it mean that Oakland should drop its social justice claim. The seas are coming, and these fossil fuel companies – which have deceived us all, regardless of the costs – must pay. Moreover, so long as they remain in Oakland and segregated within the City’s low elevation areas, Oakland’s vulnerable communities will need the protection that the sea walls will afford.
However, Oakland must contend with its lack of innocence. All of the California cities as well as others that are suing fossil fuel companies must contend with their lack of innocence. They must rethink the climate reparations they seek as a means to both protect and make whole the communities they have harmed and endangered, both here and abroad. When they build up their walls and other infrastructure to guard against rising waters, they can – and must – tear down the walls that are their own legacies of slavery.
That is the climate justice their vulnerable communities need.