By Dana Drugmand
Climate liability lawsuits exploded onto the world stage in 2018—a year that began with New York City suing five oil majors and ended with France facing a potential lawsuit for failing to make climate progress and the European Parliament announcing a probe into ExxonMobil’s decades-long climate misinformation campaign.
From litigation to investigations, the strategies for holding the world’s biggest carbon polluters, including governments and corporations, accountable for climate damage are diverse and growing. They include suits to hold fossil fuel companies responsible for the climate damage done by burning their products and force them to pay for the costs of those damages. Others are trying to require governments to strengthen climate policies to protect their citizens. And new avenues are being opened, including human rights arguments and even an industry imperiled by climate change taking on the fossil fuel industry. Together, they are creating optimism among climate activists that legal channels can make progress in fighting the climate crisis.
“It’s clear that this is a genie that neither the governments nor the companies can put back in the bottle at this point,” said Carroll Muffett, president of the Center for International Environmental Law.
2018: A Cascade of Climate Cases
The year was marked by a proliferation of legal action against fossil fuel companies and governments around the world. “What was remarkable in 2018 was the rapid acceleration in the number of cases,” Muffett said.
In the U.S., more than a dozen cities and counties—and one state—have filed lawsuits demanding the fossil fuel industry help cover the costs of increasingly severe climate impacts like sea level rise, more intense drought and more damaging extreme weather.
“Local governments continued to file suits for damages against fossil fuel companies as well as the first such suit filed by a state and a similar suit filed by commercial fishermen,” said Dena Adler, climate law fellow at Columbia Law School’s Sabin Center for Climate Change Law. “We saw the first dismissals of such suits in federal court, appeals of those dismissals, and are still waiting for initial decisions from a number of courts.”
New York City made waves when city officials announced on Jan. 10 that the city was not only divesting its public pensions from fossil fuels, but also suing Big Oil. It was the first municipal climate liability suit to emerge from outside of California, and it had a ripple effect.
More suits quickly followed from Richmond, Calif.; the city and county of Boulder and San Miguel County, Colo.; King County, Wash.; and Baltimore. Rhode Island also sued fossil fuel companies in July, becoming the first state to do so. And in November, a West Coast commercial fishing association filed a climate suit of its own against oil companies, setting up the first industry vs. industry battle.
These suits are all ongoing. The NYC case and a suit brought by Oakland and San Francisco ran into early stumbling blocks as both were dismissed in federal court, but the cities are appealing. The judge who dismissed Oakland’s and San Francisco’s cases notably held a climate science tutorial in March that forced the oil companies to acknowledge climate change in a courtroom for the first time.
The state of New York is also suing Exxon for misleading investors about the business risks of climate change. The suit was filed by New York Attorney General Barbara Underwood in October following more than three years of investigating the company. The suit claims the company defrauded its own investors by overstating the value of the company’s assets in a carbon-constrained world.
Taking on Governments
Other climate lawsuits instead have targeted governments for either failing to enact effective policies to combat climate change or for enabling the continued reliance on fossil fuels. These suits have emerged around the globe, with a surge in suits this year in Europe and North America.
The ongoing youth-led climate lawsuit, Juliana v. United States, faced numerous hurdles and ended the year on hold as the Ninth Circuit Court of Appeals agreed to consider an extraordinary interlocutory appeal. That was a significant victory for the Trump administration, which had been relentlessly trying to have the case thrown out before it could proceed to trial. The Supreme Court issued a brief stay, then revoked it, and the Ninth Circuit rejected the government’s four requests for a writ of mandamus, an extremely rare pre-trial appeal, but its most recent decision keeps the proceedings on hold.
Meanwhile, youth plaintiffs supported by Our Children’s Trust, the same legal activist organization steering the federal case, brought new state-level lawsuits in Washington, Florida and Alaska. State judges dismissed the cases in Alaska and Washington, but both sets of plaintiffs are appealing.
Canada and Latin America also saw youth bring climate lawsuits in 2018. Recently, the Quebec-based environmental education group ENvironnement JEUnesse initiated a class-action lawsuit against the Canadian government on behalf of all Quebec citizens under 35. Earlier, a group of 25 youth plaintiffs supported by the organization Dejusticia sued the Colombian government claiming it is violating their fundamental rights by allowing deforestation. Colombia’s Supreme Court ruled on April 5 in favor of the youth plaintiffs and ordered the government to implement a plan to halt deforestation in the Colombian Amazon.
Climate litigation may have gained its most significant traction in Europe, thanks to a landmark appeals court ruling in October holding the Dutch government responsible for cutting emissions to protect its citizens. That decision, by the Hague Court of Appeals upheld the initial historic verdict of 2015 in Urgenda Foundation v. The Netherlands that ordered the government of the Netherlands to live up to its promise to cut emissions 25 percent by 2020. While the Dutch government said it remains committed to those promises, it continues to argue in its latest appeal to its Supreme Court that courts should not have the power to enforce those promises.
“It remains to be seen what the Dutch Supreme Court does with it, but for now it represents the first and so far only judicial decision that imposes a duty on government, based on human rights law, to take action to reduce emissions by a specified amount,” said Vermont Law School Professor Patrick Parenteau, adding that the October decision of the Dutch Court of Appeals might be the high point of the year for climate change litigation.
In the wake of Urgenda’s success, other European suits have tried similar approaches.
A group of 10 families from six countries brought a lawsuit dubbed the “People’s Climate Case” against the European Union in May, arguing the EU’s current target to reduce carbon emissions 40 percent below 1990 levels by 2030 is not enough to protect their rights to life, health, occupation, and property. The case is proceeding as the EU General Court officially accepted the case in August.
Germany and France are also facing suits challenging their lack of progress on cutting emissions. Other cases against the governments of Norway and the United Kingdom were dismissed but are being appealed.
Another major development of the past year was the investigation by the Philippines Commission on Human Rights into potential human rights violations by 47 fossil fuel companies for their role in climate change. The commission held hearings around the world in 2018 and will issue a report on its findings by June 2019.
What’s Ahead in 2019: Cases Move to the Merits
Environmental law experts say the year ahead will bring both key decisions in pending cases and will bring important evidence to the public. “That’s going to be the real sea change in this work in 2019,” Muffett said. “The findings from the Philippines are going to come out, and more of these cases are going to move from the procedural battles to actually engaging on the merits.”
The Juliana v. United States plaintiffs are hoping their case finally goes to trial in 2019. “My government has refused to be accountable to future generations and has actively tried to evade this lawsuit for three years,” said 19-year-old plaintiff Vic Barrett. “The country that prides itself in its freedom, bravery, and strength has been running away from a group of young people armed with the truth.”
Whether this case sees the courtroom will be the first big decision to watch for in 2019, Parenteau said.
The liability suits targeting fossil fuel companies are also in a procedural battle that should be decided in the coming months. The Ninth Circuit Court of Appeals will decide in a consolidated set of California municipal cases whether federal or state courts are the proper venue for the issue. “There’s at least a 50-50 chance those cases will get sent back to state court for what promises to be the real trial of the century in terms of the evidence that will be adduced, the legal talent that will be on display, and the amount of money at stake,” Parenteau said.
The communities are fighting to have these cases decided by state courts using state law, widely considered a more likely route to success. That’s because federal court have traditionally ruled that the executive and legislative branches of government are responsible for climate policy—as they did in dismissing the suits by New York, San Francisco and Oakland—and that remedies should be sought through the Environmental Protection Agency. If the California suits stay in California courts, That decision, Adler said, it will impact other carry sway in whether more communities considering file similar suits.
One case scheduled to go to trial in 2019 is the investor fraud case against Exxon, slated to begin on October 23. It is a high-profile case that could garner a lot of attention. It’s based on New York’s Martin Act, which gives the state unusual power to hold companies accountable for securities fraud, but experts say it will reverberate beyond that state.
“It has relevance to the core element in all of the public nuisance cases re: what the oil companies knew and what they did to deceive the public and stymie efforts to mitigate the harm,” Parenteau said.
Muffett agreed, saying “Lots of evidence will go into the record leading up to that trial. I think that’s going to ripple across jurisdictions here in the U.S. and around the world.”
Muffett said that while the New York case rests on claims that Exxon misled investors, another attorney general-led case from Massachusetts is looking into whether Exxon also misled consumers. An appeal is currently before the Supreme Court as Exxon has failed to have it dismissed in Massachusetts state courts.
“If the Massachusetts investigation moves forward, then we’re no longer talking about how Exxon misled investors,” Muffett said. “We’re going to start seeing documents about how Exxon misled consumers and the public. That is a much wider audience and a much vaster universe of victims and of potential plaintiffs. I think that case is really one to watch closely.”
The Global Outlook
Internationally, several cases have the potential to create momentum in the liability movement. A case involving a Peruvian farmer suing a German electric utility company over its greenhouse gas emissions is proceeding into the evidentiary phase after an appeals court accepted the farmer’s claim. That case is unique in that it considers climate impacts far from the source of the emissions, and the German court agreeing to hear it was a significant development in the field.
In Ireland, citizens supported by the organization Friends of the Irish Environment will see their lawsuit against the Irish government proceed to court for a full hearing starting Jan. 22. Parenteau, who has spent the past semester on a Fulbright fellowship at Ireland’s University College Cork, said Irish legal experts believe the case faces steep odds of succeeding in ordering the government to take specific action. “Something good could come of it,” he said. “Ireland is the first nation to enact a law requiring fossil fuel divestment. But it is way off target on emissions reductions … and is due to see significant rise in CO2 unless serious steps are taken.”
Another hearing that will generate much attention will be the European Parliament’s look into the alleged climate misinformation campaign staged by Exxon and other fossil fuel companies. That brings the American-style liability campaign to a new continent and a significant parliamentary body.
2019 could also see the first lawsuit filed by nations most vulnerable to climate change against large carbon-emitting nations and/or against fossil fuel companies. The Pacific island nation of Vanuatu is asking other small island states to join it in a climate liability lawsuit. “I think that speaks to both the sense of urgency and to the growing diversity that we’re seeing in this litigation,” Muffett said.
Overall, the next year will likely be filled with new developments in climate liability litigation and investigations. Big decisions will be made and new suits may be filed.
According to Parenteau, the outbreak of climate lawsuits that characterized 2018 and will likely continue in 2019 is not at all surprising. “Of course the defendants should have seen it coming. Many did and have been girding for the long battle to come in court, in Congress, in elections and referenda, and of course in the media,” he said. “The battle for Planet Earth is well underway and the outcome is very much in doubt.”