Climate litigation in the US could be entering a “game changing” new phase, experts believe, with a spate of lawsuits around the country set to advance after a recent supreme court decision, and with legal teams preparing for a trailblazing trial in a youth-led court case beginning next week.
The number of cases focused on the climate crisis around the world has doubled since 2015, bringing the total number to over 2,000, according to a report last year led by European researchers.
The US has not always led the way, but experts say that could be changing as:
The first constitutional climate lawsuit in the US goes to trial on Monday next week (12 June) in Helena, Montana, based on a legal challenge by 16 young plaintiffs, ranging in age from five to 22, against the state’s pro-fossil fuel policies.
A federal judge ruled last week that a federal constitutional climate lawsuit, also brought by youth, can go to trial.
More than two dozen US cities and states are suing big oil alleging the fossil fuel industry knew for decades about the dangers of burning coal, oil and gas, and actively hid that information from consumers and investors.
The supreme court cleared the way for these cases to advance with rulings in April and May that denied oil companies’ bids to move the venue of such lawsuits from state courts to federal courts.
Hoboken, New Jersey, last month added racketeering charges against oil majors to its 2020 climate lawsuit, becoming the first case to employ the approach in a state court and following a federal lawsuit filed by Puerto Rico last November.
“I don’t know of another time in history where so many courts in so many different levels all over the globe [have been] tasked with dealing with a similar overarching issue,” said Karen Sokol, law professor at Loyola University New Orleans College of Law.
Research also continues to unearth more about the fossil fuel industry’s knowledge of climate change. A January study revealed that Exxon had made “breathtakingly” accurate climate predictions in the 1970s.
The vast majority of climate-focused cases in the US have previously focused on the regulation of specific infrastructure projects, such as individual pipelines or highways, said Michael Gerrard, founder and faculty director of Columbia Law School’s Sabin Center for Climate Change Law.
But the new forms of climate litigation are different, as they grapple not with particular projects’ emissions, but on responsibility for the climate crisis itself. Sokol, who dubbed these new suits “climate accountability litigation”, says though they will not alone lower emissions, they could help reshape climate plans.
Youth climate cases
In the US, this litigation has taken a variety of forms; perhaps the best known cases are based on constitutional rights and brought by youth.
One of those cases, Held v Montana, is based on the state’s constitutional guarantees to a clean and healthy environment, which were enshrined in the 1970s and which the plaintiffs say the state has violated by supporting fossil fuels. It will next week become the first-ever constitutional climate lawsuit to go to trial in the US.
“Our government knows the devastating effects of fossil fuels and must take action to protect the land that my family and fellow Montanans rely upon and hope to conserve for future generations,” the plaintiff Rikki Held, then 18, said in 2020.
In what attorneys on the case assert was a thinly-veiled attempt to avert a trial, state legislators in March repealed one of two laws that the suit directly challenges. But in May, the judge who is scheduled to hear the case rejected the state’s bid to throw out the case, allowing the trial to proceed.
Advocates hope the two-week trial, scheduled to begin on Monday 12 June, could set precedent for similar cases to move forward. It could also inspire legal action in other states, like Pennsylvania and New York, which like Montana guarantee constitutional environmental rights.
Held v Montana followed the highly publicized 2015 Juliana v United States in which 21 young people from Oregon sued the US government for violating their constitutional rights to life, liberty and property by enacting policies that drove and exacerbated the climate crisis. The case, which like the Montana suit was filed by the non-profit law firm Our Children’s Trust, calls on federal officials to phase out fossil fuels.
Last week, a US district court ruled in favor of the youth plaintiffs, allowing that their claims can be decided at trial in open court.
“It was really a happy surprise,” Julia Olson, lead counsel for the youth plaintiffs, said at a Monday evening advocacy meeting, adding that the legal team will ask for an expedited trial date.
Litigation based on state constitutional rights, also filed by Our Children’s Trust, is currently pending in four other states. One of those cases brought by Hawaii youth is set to go to trial, possibly as soon as this fall.
“We went from no constitutional climate trials in US history to [having] three in the works,” Erin Barnhardt, chief communications officer at Our Children’s Trust, said at the Monday meeting.
Another set of lawsuits in the US allege that the fossil fuel industry has for decades known about the dangers of burning coal, oil and gas, and actively hid that information from consumers and investors. Since 2017, seven states, 35 municipalities, the District of Columbia, and one industry trade association have sued major fossil fuel corporations and lobbying groups on these grounds.
Unlike the youth plaintiffs’ constitutional cases, the disinformation lawsuits ask for monetary damages based on destruction wrought by the climate crisis.
The oil industry has long requested to have these cases heard in federal courts instead of the state courts where they were filed, which are seen as more favorable to the challengers – “an intentional strategy by the oil industry designed to kill the cases”, said Carroll Muffett, CEO of the Center for International Environmental Law. But the supreme court recently cleared this hurdle.
In April, the high court turned down five such appeal requests by oil majors. The following month, it issued a similar decision on appeal requests in lawsuits filed by Hoboken and Delaware.
That win could be “game changing” for the litigation, said Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists. There could still be procedural challenges and delay, but now, they could begin to see courts debate their legal merit.
“For half a decade where they’ve been sitting in these jurisdictional battles, climate change has continued to advance and communities have suffered unimaginable losses due in part to the reckless nature of what the fossil fuel industry has been doing,” she said. “Now, there still is a long journey these cases will go through, [but] it’s a very different landscape.”
Theodore J Boutrous, counsel for Chevron, called the lawsuits “wasteful”, saying the climate crisis “requires a coordinated and thoughtful federal policy response, not a disjointed patchwork of lawsuits in state courts across multiple states”.
But Sam Sankar, senior vice-president for programs at Earthjustice, said the lawsuits aren’t attempting to set policy. “They’re attempting to recover the costs of climate change from the industries that were instrumental in creating the crisis,” he said.
If the decisions survive dismissal motions, the seven cases will likely move into discovery – the pre-trial process when both sides can request evidence to help strengthen their cases.
A lawsuit in Massachusetts has already defeated the companies’ motions to dismiss and is already in discovery; a trial is set to take place sometime after the process concludes in July 2024. In a case brought by the city and county of Honolulu, Hawaii, a limited version of the discovery process has also begun.
Todd Spitler, an ExxonMobil spokesperson, said his company will “continue to fight these suits, which are a waste of time”. A spokesperson for the lobbying group American Petroleum Institute, which is a defendant in some of the suits, said the industry has substantially cut emissions over the past two decades.
Experts say that because companies are still expanding fossil fuels, their actions don’t come close to heeding the warnings of top scientists.
There is already abundant evidence of the fossil fuel sector’s history of misinformation, thanks to reporting, research and congressional investigations. That means lawyers can be highly targeted in the discovery process, potentially providing fodder for future litigation, Muffett said.
Each of the two dozen disinformation cases are based on some combination of four different legal theories: tort law, product liability, consumer protection – and, most recently, racketeering.
In late April, lawyers for the city of Hoboken amended a 2020 complaint to allege that the defendants violated New Jersey’s racketeering laws by conspiring to sow doubt about climate change.
It marked the first-ever state-level lawsuit of its kind, following one last year in which 16 Puerto Rico cities brought federal racketeering charges, originally used to bring down criminal enterprises like the mafia, against big oil.
Unlike some previous cases, Hoboken’s amended lawsuit focuses not only on past misinformation, but also on contemporary greenwashing – something that could feature prominently in future cases.
Coming litigation might also target financial institutions like banks and asset managers that back fossil fuel expansion, as well as companies involved in the production of energy, food and plastics – strategies already seen in other countries.
Strides in scientific attempts to attribute particular climate disasters to specific actors could open the door to new litigation, said Merner. Groundbreaking research last month quantified the amount of annual climate reparations top fossil fuel companies owe to frontline communities, while a Union of Concerned Scientists study released the same week attributed an amount of acreage burned by forest fires to top emitters.
A study last month examined litigation against fossil fuel majors and found that the filing of a new case or a court decision against a corporation took a slight toll on their finances. Novel developments – including a groundbreaking 2021 Netherlands court ruling ordering Shell to substantially slash its carbon emissions, and an unprecedented transnational claim filed in 2012 by a Peruvian farmer against a German energy company – yielded bigger blows.
Sankar, of Earthjustice, said he expects to see new forms of climate litigation in future years. “As the impact on states and localities increases, they are increasingly going to be looking for ways in which their state and local laws protect them,” he said.
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