Open thread: climate lawsuits

People are making use of nearly every possible mechanism to try to cajole, convince, pressure, or force governments into adopting plans that are ambitious enough to avoid dangerous climate change.

One possible avenue of remedy is lawsuits, like when the Urgenda Foundation convinced a Dutch court to require the government to tighten its 2020 emission reduction target.

In October, The Economist reported:

The state of New York filed a lawsuit against ExxonMobil, claiming that it misled investors about the risk that regulations on climate change posed to its business. The suit alleges that the oil company “built a façade to deceive” how it measured the risk and frequently did not apply the “proxy cost” of carbon, which accounts for expected future events, to its decisions.

There are attractive and unattractive features to using the courts. On the plus side, they may be more open to evidence than politicians, who are generally loathe to do anything that might threaten jobs or economic growth in the near term. The biggest limitation is probably the courts aren’t policy-makers and defer to legislatures to actually design government policy. Also, because both the causes and the effects of climate change are spread across space and time it’s impossible to say that emissions from source X caused consequence Y. Also, since the people harmed are all around the world and largely in the future there is no court that can hear petitions from all of them.

That said, there is cause for hope that lawsuits will be part of an effective path forward and a means to hold governments to account when they want to claim to be climate champions while simultaneously favouring and protecting emitting industries.


77 thoughts on “Open thread: climate lawsuits”

  1. How the courts can help in the climate change fight

    A Quebec environmental group is taking the federal government to court. ENvironnement JEUnesse filed a class-action suit on behalf of Quebeckers aged 35 and under seeking a declaration that the government’s behaviour in the fight against climate change infringes on their human rights. The claim also seeks punitive damages.

    They are not alone. Similar claims have been filed on behalf of young people in other jurisdictions, including the Netherlands, the United States and Colombia.

    Understanding and addressing the challenges of climate change is rapidly becoming the next legal frontier. As environmental lawyer David Boyd recently noted, litigation is one of the most powerful tools for holding governments’ feet to the fire and demanding accountability. The same is true in respect to corporate actions. This raises some interesting concerns.

    Consider some of the challenges in addressing systemic risks. They are fraught with complex causal chains, with potential triggers occurring at distant points in time, space and degrees of apparent relatedness. Predicting the probability, cost and magnitude of risk, or anticipating where an impact will be felt most acutely, is difficult. Our legal systems are based upon learning through trial and error. This model may not be well-suited to risks where the potential damage is so severe that we may no longer be able to learn a lesson if it occurs.

  2. “I agonise waiting for the word for the fate of my very own relatives… I speak for the countless people who will no longer be able to speak for themselves after perishing from the storm.” With these words, Yeb Sano, the Philippines’ representative to the 2013 un climate summit in Warsaw, Poland, became the unexpected figurehead of those talks. Three days earlier, on November 8th, supertyphoon Haiyan had barrelled into his country, cutting off all communication with the outside world. More than 6,000 people died in the storm.

    Mr Sano’s emotional appeal to his fellow delegates drew a direct line between climate change and Haiyan. Whether the damage caused by extreme weather events can be linked to human emissions of greenhouse gases is one of the hottest topics in climate science. And that debate leads directly to another: if this link can be established, who bears the responsibility?

    Both of these questions are at the centre of an inquiry by the Philippine Commission on Human Rights, whose latest hearings took place in London earlier this month. It is the first time a human-rights commission has heard evidence on whether large emitters violate basic human rights by causing climate change.

    Addressing the hearing from Geneva, Benjamin Schachter, who acts for the Office of the un High Commissioner for Human Rights on such matters, said that the impacts of climate change “directly and indirectly threaten the full and effective enjoyment of a range of human rights, including the rights to life, water and sanitation, food, health, housing, self-determination and development.” Certain studies support this. Felix Pretis of the University of Oxford has shown that even 1.5°C of warming (relative to pre-industrial times) will reduce economic growth in some regions, and that the tropics will feel this impact more than other parts of the world. Some studies predict that a rise in the number of heat-related deaths in many parts of the world, South-East Asia among them, will outweigh any reduction in the number of cold-related deaths.

  3. The G.C.C. disbanded in 2002 after the defection of various members who were embarrassed by its tactics. But Exxon (now Exxon Mobil) continued its disinformation campaign for another half decade. This has made the corporation an especially vulnerable target for the wave of compensatory litigation that began in earnest in the last three years and may last a generation. Tort lawsuits have become possible only in recent years, as scientists have begun more precisely to attribute regional effects to global emission levels. This is one subfield of climate science that has advanced significantly since 1979 — the assignment of blame.

    A major lawsuit has targeted the federal government. A consortium of 21 American children and young adults — one of whom, Sophie Kivlehan of Allentown, Pa., is Jim Hansen’s granddaughter — claims that the government, by “creating a national energy system that causes climate change,” has violated its duty to protect the natural resources to which all Americans are entitled.

    In 2015, after reports by the website InsideClimate News and The Los Angeles Times documented the climate studies performed by Exxon for decades, the attorneys general of Massachusetts and New York began fraud investigations. The Securities and Exchange Commission separately started to investigate whether Exxon Mobil’s valuation depended on the burning of all its known oil-and-gas reserves. (Exxon Mobil has denied any wrongdoing and stands by its valuation method.)

    The rallying cry of this multipronged legal effort is “Exxon Knew.” It is incontrovertibly true that senior employees at the company that would later become Exxon, like those at most other major oil-and-gas corporations, knew about the dangers of climate change as early as the 1950s. But the automobile industry knew, too, and began conducting its own research by the early 1980s, as did the major trade groups representing the electrical grid. They all own responsibility for our current paralysis and have made it more painful than necessary. But they haven’t done it alone.

  4. U.S. company trying to sue Canada over coal phase-out made a bad bet, says academic

    A U.S. company that owns coal mines in Canada is considering suing the federal government over the phasing out of the fossil fuel, but one academic calls that plan “a bad bet.”

    “Coal is on the way out,” Kyla Tienhaara, Canada Research Chair in Economy and Environment at Queen’s University, told The Current’s guest host Matt Galloway.

    She added that Westmoreland Coal Company should have been aware of this when they bought seven mines in Canada in 2013.

    International governments have been ramping up their efforts amid an increased urgency to reduce greenhouse emissions, said Tienhaara.

    “I think [they made] a bad bet, and why should we pay for it?”

  5. Judge rejects young Quebecers’ lawsuit seeking federal action on climate change

    A Quebec environmental group says it will appeal a decision last week rejecting its attempt to launch a class-action lawsuit against the federal government for what it says is a failure to combat climate change.

    Superior Court Justice Gary Morrison delivered his ruling Thursday, emphasizing that the cause of environmental protection was of undoubted importance but raising doubts about the nature of the class seeking damages.

  6. Environmentalists and green investors, long critics of ExxonMobil, are trying to knock the company off course. Several American cities and counties are using the courts to demand that large oil companies pay for the cost of guarding against rising sea levels. In October New York’s attorney-general filed a suit alleging that ExxonMobil used one set of assumptions about climate change in external documents and another for internal planning. That case is pending. In January America’s Supreme Court rejected the firm’s attempt to halt a separate investigation by Massachusetts over whether it misled the public about threats from climate change.

    Lawsuits are unlikely to vanquish ExxonMobil. Last year a federal judge in California dismissed a lawsuit against oil firms, arguing that Congress and diplomacy, not courts, should handle the fallout from climate change. “If I were trying to think of an existential threat to the company it’s not litigation,” says Andrew Logan of Ceres, a non-profit that works with investors to argue for sustainability, “it’s whether the business strategy is obsolete.”

  7. The final threat looms in the courtroom. It is the hardest of the three to assess. This month pg&e reached an $11bn settlement with insurers seeking compensation from the Californian utility for payouts they made to homeowners and businesses in connection with wildfires. These were sparked by its power lines—and climate change increased their likelihood. Proving a company’s culpability for natural disasters is rarely this uncomplicated. Plaintiffs must show that they have suffered an injury, that the defendant caused it and that the court can redress it (with damages, say). In 2012 a federal court threw out a case brought by residents of Mississippi against 34 big carbon emitters for harm resulting from Hurricane Katrina, which they argued climate change made more destructive.

    Still, climate lawsuits against companies are mounting. Last year New York state sued ExxonMobil for deceiving investors about risks to the firm from climate-change regulation (the firm denies this). Better climate science has made establishing causality more credible, if by no means easy. Some American counties have sued a number of oil giants on grounds akin to those of the Mississippi claimants.

    In 2017 the fsb issued voluntary guidelines to firms and investors about disclosing such risks. Big asset managers, including BlackRock, back these in principle. But firms are reluctant to be the first to own up to vulnerabilities. They fear, rightly, that the market will punish honesty, not reward it. Until disclosures are made mandatory, companies are likely to prevaricate.

  8. A court case between the city of Baltimore and a group of energy companies will be permitted to continue after the Supreme Court last week rejected the latter’s attempt to freeze the case. The litigation, which the city initiated in 2018, alleges that the energy companies are liable “for their direct emissions of greenhouse gases” and the damages they’ve caused the city and its residents.

    No explanation accompanied the Supreme Court rejection, but Baltimore is considering it a victory, since its case against companies including BP, Exxon Mobil, Shell, and Citgo can now continue. Though the ultimate decision of where the case should be heard may end up being more significant than the high court ruling.

    The energy companies’ request to halt the case is part of their broader legal fight to move the case from state to federal court. The companies hope to establish a precedent in which climate cases are largely heard by federal courts, where “climate-related cases have been largely decided in the companies’ favor,” reports Climate Liability News. In a recent article on the Supreme Court’s rejection of the freeze, New York Times columnist Adam Liptak points out that cases in state courts disadvantage big corporations because cities have a “home-court advantage before local judges.”

  9. A lawsuit brought by New York state’s attorney-general claiming that ExxonMobil engaged in dodgy climate-change accounting opened in court. The suit accuses the oil company of defrauding investors by disclosing a public proxy cost for carbon emissions to account for the possibility of climate regulations, while using a separate, lower estimate for carbon costs in its internal planning. The attorney-general maintains this meant investors could not properly account for the risk posed by climate regulations. The company denies wrongdoing.

  10. “While opponents have tried to use the legal system to block progress on clean energy, advocates have also taken to the courts for their own ends. In Arizona, SolarCity challenged the legality of net metering charges. More broadly, the legal system is becoming an increasingly important venue for battles over climate policy. Significant investigative reporting and academic work revealed that ExxonMobil knew the science of climate change in the 1970s and 1980s (Supran & Oreskes 2017). Yet ExxonMobil launched a denial campaign and lied to the public for decades (Oreskes & Conway 2010). In response, the attorney generals [sic] of New York and Massachussets opened legal investigations into the company in 2015 and 2016, respectively.19 While the New York case was unsuccessful, that does not mean that other challenges will not prevail. States, cities, and counties have similarly instigated suits against several fossil fuel companies, including for compensation from climate damages. This strategy mirrors efforts to hold tobacco companies accountable for fraudulent behavior—an effort that, after decades, eventually succeeded.”

    Stokes, Leah Cardamore. Short Circuiting Policy: Interest Groups and the Battle Over Clean Energy and Climate Policy in the American States. Oxford University Press, 2020. p. 233

    19. David Hasemyer, “Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today,” InsideClimate News, January 6, 2019

    Supran, G., & Oreskes, N. (2017) “Assessing ExxonMobil’s Climate Change Communications,” Environmental Research Letters, 12/8: 084019.

    Oreskes, N. & Conway, E. M. (2010) Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming. New York; Bloomsbury Press.

  11. “In addition to working through the parties and the public, clean energy and climate advocates would be wise to use the courts to advance their cause. In the last several years, the courts have become a key battleground for climate policy (Adler 2019; Burger & Wentz 2018). In 2015 and 2016, in response to investigative journalism, the attorney generals [sic] in New York and Massachussets launched investigations into ExxonMobil.70 Although the oil giant attempted to thwart these probes, both states pursued cases. In late 2018, the New York attorney general sued the company for fraud against investors, naming former CEO Rex Tillerson as a knowing participant in the scheme. In late 2019, the trial took place and ExxonMobil prevailed. But this is only the first case and it was pursued on relatively narrow grounds. The Massachussets case, which likely will take a different approach, has yet to begin. Under a future federal administration, the Department of Justice could also pursue further claims in this area. We could expect the government to pursue cases similar to the lawsuits launched against the tobacco industry in the late 1990s, potentially resulting in large settlements. A second legal strategy involves cities making public nuisance claims against fossil fuel companies. Cities in California, Colorado, and Washington State, alongside Rhode Island, Baltimore, and New York City, have all alleged that these corporations knew about climate science for decades. Yet, instead of reducing the harms their products caused, fossil fuel companies promoted climate denial and worked to stall government action. These cities and states seek billions in damages to pay for adaptation costs, such as building sea walls. A third set of legal challenges involves children suing the federal government for inaction on climate change.”

    Stokes, Leah Cardamore. Short Circuiting Policy: Interest Groups and the Battle Over Clean Energy and Climate Policy in the American States. Oxford University Press, 2020. p. 254–5

    70. David Hasemyer, “Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today,” InsideClimate News, January 6, 2019.

    Adler, D. P. (2019) U.S. Climate Change Litigation in the Age of Trump: Year Two. New York: Sabin Center for Climate Change, Columbia Law School.

    Burger, M., & Wentz, J. (2018) “Holding Fossil Fuel Companies Accountable for Their Contribution to Climate Change: Where Does the Law Stand?” Bulletin of the Atomic Scientists, 74/6: 397–403. DOI: 10.1080/00963402.2018.1533217

  12. Did Canada’s largest oil producer learn about climate change as early as 1959, develop a massive bitumen industry in northern Alberta knowing the atmospheric damage it would cause, and then take part in an international effort throughout the 1990s and 2000s to convince the public that climate change isn’t real?

    Those questions are now at the heart of a closely-watched lawsuit filed against Suncor in the state of Colorado, which earlier this month cleared an important legal hurdle.

    Attorneys for Exxon argue the entire premise of the case is flawed because “anyone who used automobiles, jets, ships, trains, power plants, heating systems, and factories since the dawn of the Industrial Revolution… has contributed to the problem of global warming.”

    But experts say the oil and gas industry is more worried than it lets on about this and a series of similar cases filed in other U.S. states. “It would be absolutely devastating to the industry to have one of these high-profile cases go to trial,” said Mary Wood, a professor of environmental law at the University of Oregon. “Not only for the legal precedent it could create, but just as important, a trial would result in a broad moral indictment of this industry because it would present truly jaw-dropping factual characterizations of what the company knew” about climate change.

  13. Setting precedents
    Green investors are embracing litigation
    Some are winning

    But their court cases are also part of a growing willingness among green investors to see legal action as an alternative to divestment. “Unless the corporate sector switches quickly to meet investor expectations, I think we are inevitably going to see increasing shareholder litigation,” says Peter Barnett, a lawyer with ClientEarth, an ngo.

    Occasionally shareholder litigation can lower emissions directly. In 2018 ClientEarth bought €30-worth ($36) of shares in Enea, a Polish power company, and later sued over the firm’s plan to build Ostroleka C, dubbed “the last coal unit ever to be built in Poland”. The ngo argued that the decarbonisation of the energy sector would make Ostroleka C an unprofitable stranded asset, creating an “indefensible” financial risk. The Polish courts ruled in ClientEarth’s favour last year, and the project has been abandoned—a powerful precedent.

  14. Oil companies defeat New York City appeal over global warming

    NEW YORK (Reuters) -A federal appeals court on Thursday rejected New York City’s effort to hold five major oil companies liable to help pay the costs of addressing harm caused by global warming.

    Ruling in favor of BP Plc, Chevron Corp, ConocoPhillips, Exxon Mobil Corp and Royal Dutch Shell Plc, the 2nd U.S. Circuit Court of Appeals in Manhattan said the regulation of greenhouse gas emissions should be addressed under federal law and international treaties.

    It rejected the city’s efforts to sue under state nuisance law for damages caused by the companies’ “admittedly legal” production and sale of fossil fuels, and said the city’s federal common law claims were displaced by the federal Clean Air Act.

    “Global warming presents a uniquely international problem of national concern,” Circuit Judge Richard Sullivan wrote for a three-judge panel. “It is therefore not well-suited to the application of state law.”

    Sullivan added that while the Clean Air Act did not address emissions from outside the country, foreign policy concerns and the risk of courts “stepping on the toes of the political branches” barred the city’s lawsuit.

  15. Green investors are embracing litigation
    Some are winning

    The fact that Mr McVeigh and Ms O’Donnell are both Australian may reflect their government’s laggardly approach to climate change. But their court cases are also part of a growing willingness among green investors to see legal action as an alternative to divestment. “Unless the corporate sector switches quickly to meet investor expectations, I think we are inevitably going to see increasing shareholder litigation,” says Peter Barnett, a lawyer with ClientEarth, an ngo.

    In some more recent cases, the focus has shifted from disclosure to demanding strategies to reduce risk. Mr McVeigh’s case alleged that Rest was failing to address the risks posed by climate change. Ms O’Donnell’s case is being watched for a different kind of outcome. If she wins, the Australian government, which has done much to support the coal industry and little to limit national emissions, may have to issue a public statement about the financial risks posed by climate change. A backlash against dirty bonds is already hurting some of Australia’s regional governments. Last year Sweden’s central bank said that it would not invest in the assets of dirty issuers, and promptly sold bonds issued by Queensland and Western Australia.

    Occasionally shareholder litigation can lower emissions directly. In 2018 ClientEarth bought €30-worth ($36) of shares in Enea, a Polish power company, and later sued over the firm’s plan to build Ostroleka C, dubbed “the last coal unit ever to be built in Poland”. The ngo argued that the decarbonisation of the energy sector would make Ostroleka C an unprofitable stranded asset, creating an “indefensible” financial risk. The Polish courts ruled in ClientEarth’s favour last year, and the project has been abandoned—a powerful precedent.

  16. BP v. Baltimore sets stage for broader climate brawl

    The next time the Supreme Court considers the fossil fuel industry’s role in causing climate change, the stakes could be much higher — both for the industry and the planet.

    That was some environmental lawyers’ main takeaway from the Supreme Court’s 7-1 decision yesterday in BP PLC v. Mayor and City Council of Baltimore, which resolved a dry technical issue in Baltimore’s climate liability lawsuit against 26 oil and gas companies.

    The justices didn’t decide the case on the merits, meaning they did not wade into weighty allegations by Baltimore — and more than 20 other states and municipalities — that the fossil fuel industry misled the public for decades about the dangers of global warming.

    That could soon change.

    “It is possible that a climate liability case will reach the Supreme Court on the merits or closer to the merits,” said Marco Simons, general counsel at EarthRights International.

  17. Passed after bruising intra-coalition negotiations in 2019, Germany’s first climate law decreed that by 2030 carbon emissions must be cut by 55% from the level of 1990, and laid out annual quotas for different sources of emissions. It also stated that Germany, like the rest of the eu, would aim to emit no net greenhouse gases by 2050. (The previous target for 2020 of a 40% cut was narrowly met, thanks to the pandemic.) The law was hopelessly unambitious, howled critics. “Politics is what is possible,” shrugged Angela Merkel, the chancellor. But now the constitutional court has redefined the limits of the possible. The judges said the law risked forcing future generations to “engage in radical abstinence” by leaving too much of the burden to the years after 2030.

  18. Lawsuits aimed at greenhouse-gas emissions are a growing trend

    And better science could make them more precise

    According to the Grantham data, as of 2021 58% of cases outside America which had been concluded had outcomes favourable to the parties seeking more action on climate. Only 32% of results had been unfavourable.

    In February 2020 a group of young Germans led by Luisa Neubauer, a climate activist, sued their government for failing to set climate targets that were in line with the Paris agreement goals. A year later the Federal Constitutional Court found in favour of the plaintiffs; it ruled that the government had a duty to protect future generations and that the nation’s emissions budget could not be consumed by one generation at the expense of the next. As a result of the ruling, Germany’s climate-change act was amended to aim for a 65% reduction in greenhouse-gas emissions by 2030, relative to 1990 levels, instead of the 55% previously required.

    As the number and diversity of climate lawsuits grows, companies are taking them more seriously. Financial-risk disclosure statements filed annually to America’s Securities and Exchange Commission show that the lawyers and auditors working for some companies increasingly consider climate litigation to pose a material risk. On reviewing statements filed by several fossil-fuel companies between 2014 and 2021, The Economist found that prior to 2016 those which mentioned climate litigation at all made only passing reference to it. Some continue in this vein: ExxonMobil does not explicitly mention climate litigation in any of its filings, despite being a defendant in numerous cases.

    Since Paris, though, several big fossil-fuel companies, including Chevron, ConocoPhillips and Shell, have been systematically including climate lawsuits as a potential material risk. Having made scant mention of such litigation previously, in 2016 Chevron listed “private” climate litigation as a “potential” risk. By 2020, the company was referring to a risk of “increased investigations and litigation” related to climate change. Shell’s disclosures refer to climate lawsuits for the first time in 2017. In its 2021 filing it had a paragraph on the various climate lawsuits that had been brought against it, including 21 pending in America as of December 31st 2021. It concluded that there was “a high degree of uncertainty” regarding outcomes, “as well as [the lawsuits’] potential effect on future operations, earnings, cashflows and Shell’s financial condition”.

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