- Don’t Eat Local Crab! Toxic Bloom Makes Dungeness Unsafe, State Health Department Warns
- Dungenless: California Fish and Game Commission Suspends Crabbing Season Until Domoic Acid Numbers are No Longer a Significant Risk
- Director of CDFW Enacts Emergency Delay of Commercial Crabbing Season Due to Domoic Acid Levels
- CDFW: California’s Commercial Crab Season Delayed After Tests Show Poor Meat Quality
- Domoic Acid Levels Delay Recreational Dungeness Crab Season Between Patrick’s Point and Oregon Border; Season Opens Everywhere Else This Saturday
Toxic algae has wreaked havoc on the local Dungeness crab fishery in recent years, as you can see by that list of headlines above. Warmer ocean waters off the coast have led to toxic algal blooms and a buildup of poisonous domoic acid in the tasty crustaceans’ flesh, prompting state regulators to shorten and/or suspend the commercial crabbing season in 2015, 2016 and 2017.
Last week, a collection of fishermen associations in California and Oregon filed a lawsuit against 30 fossil fuel companies, including Chevron, Exxon Mobil, BP and Shell, accusing them of
warming screwing up the planet by releasing hundreds of gigatons of polluting emissions into the environment while simultaneously trying to manufacture doubt about human-caused global warming.
The suit, which has received coverage in the San Francisco Chronicle, The Guardian, Scientific American and elsewhere, attempts to hold these oil companies responsible for the huge economic losses fishermen and -women have suffered in recent years.
“Defendants have known for nearly 50 years that greenhouse gas pollution from their fossil fuel products has a significant impact on Earth’s climate, including a warming of the oceans,” the complaint alleges. And instead of working to reduce the negative effects on the planet, these Big Oil companies championed anti-regulation and anti-science campaigns, making matters worse, the suit says.
The 2018-19 crab season opened this past Thursday from Bodega Bay south to the
Oregon Mexico border, but it remains closed along the North Coast because, once again, testing from the California Department of Public Health revealed domoic acid in the local Dungeness.
The introduction to the complaint, filed by San Francisco firm Sher Edling, LLP, on behalf of the Pacific Coast Federation of Fishermen’s Associations (PCFA), is pretty scathing and a damn good read, as lawsuits go. We’ve pasted it in its entirety below.
Attorneys want a jury trial, and the plaintiffs are seeking compensatory and punitive damages, attorneys’ fees, and “disgorgement of profits,” which sounds painful but really just means more money.
Could they win? Eh, maybe. There’s been a slew of climate litigation recently, inspired by similar suits against Big Tobacco over the years. But when the cities of San Francisco and Oakland sued oil companies earlier this in an attempt to recover the costs of building seawalls to protect against sea-level rise, a federal judge tossed the suits.
Other cases, however, remain pending. A number of cities in California are taking on Big Oil in court, as is a group of 21 Oregon teenagers who say the federal government’s inactivity on climate change “has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.”
At least one attorney says this suit from the crab fishermen represents a significant new step. David Bookbinder, chief counsel at the Niskanen Center, is quoted in Scientific American saying, “When a group of commercial fishermen, among the most conservative people in America, sue the fossil fuel industry, the defendants can no longer characterize these cases as being brought by ‘radical politicians.’”
We’ve pasted the entire introduction to the Pacific Coast complaint below. You can find the rest of the lawsuit here.
The world’s oceans are changing, and commercial fishermen and -women, their businesses, their communities, and their families are paying the price.
Climate change is impacting the oceans by increasing average sea temperatures, increasing the frequency and intensity of marine heatwaves, destabilizing and disturbing marine wildlife populations, affecting ocean circulation, and increasing the frequency and severity of harmful algal blooms.
These changes threaten both the productivity of commercial fisheries and safety of commercially harvested seafood products. In so doing, they also threaten those that rely on ocean fisheries and ecosystems for their livelihoods, by rendering it at times impossible to ply their trade.
With this action, the largest commercial fishing industry trade group on the west coast seeks to hold responsible parties accountable for acute changes to the ocean off of California and Oregon that resulted, over the last three years, in prolonged regulatory closures of the Dungeness crab fisheries — the most lucrative and reliable fisheries on the west coast.
Such closures will recur, as the conditions giving rise to them increase in frequency and magnitude as the oceans continue to warm. Accordingly, the crab fishing industry brings this action to force the parties responsible for this severe disruption to fishing opportunity, and the consequent impacts on fishing families, to bear the costs of their conduct.
Defendants, major corporate members of the fossil fuel industry, have known for nearly a half century that unrestricted production and use of their fossil fuel products create greenhouse gas pollution that warms the planet, changes our climate, and disrupts the oceans. They have known for decades that those impacts could be catastrophic and that only a narrow window existed to take action before the consequences would be irreversible.
They have nevertheless engaged in a coordinated, multi-front effort to conceal and deny their own knowledge of those threats, discredit the growing body of publicly available scientific evidence, and persistently create doubt in the minds of customers, consumers, regulators, the media, journalists, teachers, and the public about the reality and consequences of the impacts of their fossil fuel pollution.
At the same time, Defendants have promoted and profited from a massive increase in the extraction and consumption of oil, coal, and natural gas, which has in turn caused an enormous, foreseeable, and avoidable increase in global greenhouse gas pollution and an accompanying increase in the concentration of greenhouse gases, particularly carbon dioxide (“CO2”) and methane, in the atmosphere.
Those disruptions of Earth’s otherwise balanced carbon cycle have substantially contributed to a wide range of dire climate-related effects, including global warming, rising atmospheric and ocean temperatures, ocean acidification, melting polar ice caps and glaciers, more extreme and volatile weather, sea level rise, and marine heatwaves with concomitant harmful algal blooms. Families and businesses that depend on the health and productivity of the Dungeness crab fishery to earn their livings suffer the consequences.
Defendants are vertically integrated extractors, producers, refiners, manufacturers, distributors, promoters, marketers, and sellers of fossil fuel products.
Decades of scientific research show that pollution from the production and use of Defendants’ fossil fuel products plays a direct and substantial role in the unprecedented rise in emissions of greenhouse gas pollution and increased atmospheric CO2 concentrations since the mid-20th century. This dramatic increase in atmospheric CO2 and other greenhouse gases is the main driver of the gravely dangerous changes occurring to the global climate
Anthropogenic (human-caused) greenhouse gas pollution, primarily in the form of CO2, is far and away the dominant cause of global warming and the observed increase in ocean temperatures, including marine heatwaves. The primary source of this pollution is the extraction, production and consumption of coal, oil, and natural gas, referred to collectively in this Complaint as “fossil fuel products.”
The rate at which Defendants have extracted and sold fossil fuel products has exploded since the Second World War, as have emissions from those products. The substantial majority of all anthropogenic greenhouse gas emissions in history has occurred since the 1950s, a period known as the “Great Acceleration.”
About three quarters of all industrial CO2 emissions in history have occurred since the 1960s, and more than half have occurred since the late 1980s. The annual rate of carbon dioxide emissions from production, consumption, and use of fossil fuels has increased by more than 60 percent since 1990.
Defendants have known for nearly 50 years that greenhouse gas pollution from their fossil fuel products has a significant impact on Earth’s climate, including a warming of the oceans. Defendants’ awareness of the negative implications of their own behavior corresponds almost exactly with the Great Acceleration, and with skyrocketing greenhouse gas emissions.
With that knowledge, Defendants took steps to protect their own assets from these threats through immense internal investment in research, infrastructure improvements, and plans to exploit new opportunities in a warming world.
Instead of working to reduce the use and combustion of fossil fuel products, lower the rate of greenhouse gas emissions, minimize the damage associated with continued high use and combustion of such products, and ease the transition to a lower carbon economy, Defendants concealed the dangers, sought to undermine public support for greenhouse gas regulation, and engaged in massive campaigns to promote the ever-increasing use of their products at ever greater volumes. Thus, each Defendant’s conduct has contributed substantially to the buildup of CO2 in the environment that drives ocean warming.
As an actual and proximate consequence of Defendants’ conduct, the crab fishing industry has been deprived of valuable fishing opportunities, and consequently suffered severe financial hardships. These injuries derive from rising ocean temperatures in the eastern Pacific Ocean generally and periodic extreme marine heatwaves — the results of anthropogenic ocean warming caused by the foreseeable and intended use of Defendants’ products.
Recent marine heatwaves along the United States’ west coast created the ideal conditions for the toxic algal group Pseudo-nitzschia to increase in abundance and invade the marine regions that correspond with some of the most productive Dungeness crab fishery grounds.
The massive Pseudo-nitzschia bloom generated unprecedented concentrations of the neurotoxin domoic acid, a compound which, when ingested by humans, causes “amnesic shellfish poisoning” which induces symptoms including vomiting, diarrhea, cramps, and other gastrointestinal upset, permanent short-term memory loss, and, in severe cases, death.
Rising ocean temperatures and the resultant Pseudo-nitzschia blooms allow domoic acid to enter the marine food web and accumulate in crab flesh, rendering it at times dangerous and unfit for human consumption.
In response to this public health crisis, the California Department of Fish and Wildlife (“CDFW”), in coordination with the California Department of Public Health (“CDPH”), closed — for the first time ever — significant portions of the California coast to commercial Dungeness crab fishing in the 2015–16 fishing season, and again in 2016–17.
The Oregon Department of Fish and Wildlife (“ODFW”) and the Oregon Department of Agriculture (“ODA”) similarly closed large areas of the Oregon coast to commercial crabbing during the 2015–16, 2016– 17, and 2017–18 commercial crab seasons because of domoic acid toxicity.
Because of those closures, hundreds of commercial fishermen and -women holding Dungeness crab permits could not untie their boats or deploy their crab traps until crabs became safe to consume.
Additional precautionary measures and stigma from negative publicity related to domoic acid contamination have deprived the crab industry of the full value of its harvests these last three seasons by depressing the market demand for crab products.
Plaintiff represents commercial Dungeness crab harvesters and onshore crab processors and wholesalers that have suffered, and continue to suffer, substantial economic losses due to those lost fishing opportunities.
The severe curtailment of the crab fishery, which is among the most productive, lucrative, and reliable fisheries on the west coast, had damaging ripple effects throughout California’s and Oregon’s fishing families and communities, creating severe hardships that many fishermen and fishing businesses, including Plaintiff’s members, have struggled to overcome.
The severity of the economic loss endured by the crabbing community prompted the federal government to declare the 2015–16 California crab season a federal fishery disaster under the Magnuson–Stevens Fishery Management and Conservation Act.
Domoic acid incidents on the west coast, and consequent injuries to the fishing industry and west coast fishing communities generally, are the new normal. These phenomena will increase in severity and frequency as the oceans continue to change with anthropogenic global warming. Indeed, California’s 2018–19 crab season — set to begin on November 15, 2018 — will be delayed in parts of the fishery because of domoic acid toxicity.
Additional crab fishery closures will occur in the future, with increasing frequency and severity, with concomitant impacts on the fishing families, fishing communities, and the west coast fishing industry at large.
Defendants are directly responsible for a large and substantial portion of total CO2 emissions between 1965 and 2015. For example, based on Defendants’ direct extractions of fossil fuels, they are responsible for more than two hundred gigatons of emissions representing over 15 percent of total emissions of that potent greenhouse gas during that period.
Defendants are responsible for significantly larger shares of emissions based on their production, wholesale and retail sales of their products. Accordingly, Defendants are directly responsible for a substantial portion of elevated ocean temperatures that caused the domoic acid contamination on the west coast, which in turn caused the substantial and material economic injuries described herein.
Defendants’ production, promotion, marketing, and use of fossil fuel products, simultaneous concealment of the known hazards of those products, and their championing of anti-regulation and anti-science campaigns, actually and proximately caused Plaintiff’s injuries.
Accordingly, Plaintiff in its own name, in a representative capacity on behalf of its members and the west coast fishing community, and as the assignee of claims arising from domoic acid impacts on the crab fishery, brings this action against Defendants for Nuisance, Strict Liability for Failure to Warn, Strict Liability for Design Defect, Negligence, and Negligent Failure to Warn
By this action, the Plaintiff seeks to ensure that the parties responsible for the fishery closures bear the costs of its impacts, rather than Plaintiff and the men, women, families and businesses of the west coast crab industry.