Industry Allies Amplify Big Oil's Demand for US Supreme Court to End Climate Accountability Lawsuits4/15/2024 These Fossil Fuel Friends - Including a Former US Attorney general - are Fighting Against Climate Cases in US CourtsClimate activists stage a demonstration targeting the US Chamber of Commerce during a Power Shift rally in Washington DC in 2011. The US Chamber has worked for decades to obstruct climate policies and it aids major oil and gas companies try to evade accountability in the courts. Credit: Linh Do via Flickr, CC BY 2.0 DEED. Oil and gas industry trade associations, corporate-backed legal organizations, Republican attorneys general and other fossil fuel industry allies recently filed court briefs supporting Big Oil’s latest bid to have the US Supreme Court quash climate accountability lawsuits targeting the industry. The submission of these briefs comes as oil company defendants, facing the threat of standing trial and potentially paying significant sums in damage awards, petition the US’s highest federal court to reverse a ruling last fall from the Hawaii Supreme Court allowing Honolulu’s climate suit to proceed to trial. Honolulu’s case is among more than two dozen lawsuits brought by cities, counties, and states seeking to hold powerful fossil fuel entities accountable for climate harms caused by their products, and for disseminating climate denial and disinformation that ultimately magnified these harms by delaying the transition away from fossil fuels. Many of the cases have overcome initial procedural wrangling, and new suits continue to be filed – the latest one from Bucks County, Pennsylvania came just last month, a few weeks after oil companies submitted their petition explicitly calling on the US Supreme Court to “put a stop to” this barrage of lawsuits. Industry allies are now amplifying this call through the filing of friend-of-the-court or “amicus” briefs. While it is not the first time that fossil fuel defendants and their backers have lobbied the US Supreme Court to intervene in the pre-trial stages of these cases, the stakes are even higher now, they say, as several of the cases including Honolulu’s start moving towards trial in earnest. In no uncertain terms, fossil fuel company lawyers say this litigation poses “a serious threat” to the industry. Echoing this sentiment, a coalition of Republican state attorneys general say in their brief that this “grave threat” warrants the Supreme Court stepping in. Who Are These Big Oil Backers? These 20 Republican AGs are all members of the Republican Attorneys General Association (RAGA), which takes money from and has deep ties to the fossil fuel industry. As HEATED explains in an excellent new piece, the state AG brief is part of a larger project, an “organized effort by the fossil fuel industry to kill all formal efforts to hold corporations accountable for the climate crisis—both in the litigation space, and beyond.” In addition to the AGs, amici backing Big Oil’s petition include oil and gas industry trade associations – the American Petroleum Institute, Western States Petroleum Association, Texas Oil & Gas Association, and the American Exploration & Production Council; big business and “free market” lobby organizations – the US Chamber of Commerce, the National Association of Manufacturers, and the American Free Enterprise Chamber of Commerce; corporate-supported legal foundations – the Atlantic Legal Foundation, the Washington Legal Foundation, and the American Tort Reform Association; a pair of retired US military officers; and two law professors affiliated with the Hoover Institution - a public policy think tank funded by conservative and corporate donors. The US Chamber of Commerce and the National Association of Manufacturers say they represent thousands of American businesses and manufacturers of all sizes across every sector, and though their membership lists are not made public, watchdog sources document their financial ties to and advocacy for major corporate entities – several of whom are defendants in climate accountability lawsuits. The US Chamber has received at least $3 million from ExxonMobil and at least $100,000 from the American Petroleum Institute, while NAM took in $1,163,650 from API (as of 2008). Both industry lobby groups were members of the Global Climate Coalition, a corporate lobby organization (ran out of NAM headquarters) that worked throughout the 1990s to sow climate denial and doubt and obstruct climate action. According to Honolulu’s complaint, the GCC “funded deceptive advertising campaigns and distributed misleading material to generate public uncertainty around the climate debate, with the specific purpose of preventing U.S. adoption of the Kyoto Protocol.” The American Free Enterprise Chamber of Commerce is a newer entity, formed in 2022, and runs a project headed by former Trump administration Attorney General Bill Barr called the Center for Legal Action, which defends or advocates for corporate interests like oil and gas majors in the courts. The AFECC filed an amicus brief in September 2023 backing fossil fuel companies’ petition to the US Supreme Court in Minnesota’s climate accountability case; that petition sought to reverse the 8th Circuit Appeals Court’s ruling that the case could proceed in state court, and the Supreme Court in January declined to review the ruling. Barr is one of the lead lawyers behind AFECC’s amicus briefs, and as Lisa Graves, founder and executive director of investigative watchdog group True North Research explained, he has a longstanding record of representing the interests of big business. “The fact is Barr has been a hired gun for industry for much of his career, and when he wasn’t playing hired gun for industry, he was hired gun for Trump,” she said. The American Tort Reform Association says it is a “broad-based coalition of businesses, corporations, municipalities, associations, and professional firms” working for civil justice reform, though watchdog sources explain that its main purpose is protecting corporate interests from liability and restricting access to justice for people and communities. According to the Center for Justice and Democracy at New York Law School, ATRA’s members “have included representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries,” all with a “direct financial stake in restricting lawsuits.” And as Graves said, ATRA “has acted in diametric opposition to the right of the American people to hold corporations accountable, both for direct civil damages and for punitive damages, for intentional and deliberate destruction or harm.” Overall, many of the amici backing Big Oil’s attempt to kill Honolulu’s case and others like it are tied to the fossil fuel defendants or defendants’ interests, which makes sense, but is still important to understand since these interests are generally not aligned with the public interest when it comes protecting environmental and human health. “These are groups that are funded by industry,” Graves said. “Some of that is known, some of it is not known and is kept hidden. What they do on the surface is try to change the law to limit our ability as Americans to hold corporations accountable when their products or their decisions cause us harm or death.” Main Argument The amici’s arguments and assertions aim to sway the US Supreme Court justices to take up the oil companies’ petition in Honolulu’s case. The main legal argument concerns what’s called preemption. The industry and its allies claim that federal law, namely the Clean Air Act, supersedes the authority of state law when it comes to climate litigation. In making this argument, they try to cast the climate accountability suits as sweeping attempts to regulate global greenhouse gas emissions or otherwise set national climate policy, which is not what the cases aim to do. The cases, instead, are about alleged corporate malfeasance and deception; they argue that the oil and gas industry long ago knew about the potential dangers to the climate system and society of unrestrained use of their products, yet instead of warning the public or taking reasonable actions to mitigate the risks, the industry engaged in sophisticated campaigns to distort the public’s understanding of climate change and fossil fuels’ role in causing it – essentially, manipulation and lying on a grand scale. Yet industry lawyers have repeatedly tried to convince courts that the cases are all about global emissions, arguing that the emissions, not the deception, are the source of plaintiffs’ injuries. The industry’s amici briefs also make that argument – Barr and his colleagues contend in the AFECC brief for example that the “‘deceptive marketing’ label is itself deceptive marketing” and that claims pled by Honolulu and other government plaintiffs are really an “attempt to regulate and impose liability on transboundary emissions.” This characterization of plaintiffs’ claims is incorrect, as one legal expert explained. “From a straightforward legal position, these cases are not an attempt to directly regulate greenhouse gas emissions,” said Victor Flatt, an environmental law professor at Case Western University School of Law. Thus far, most courts have rejected the industry’s framing of these cases. As the Hawaii Supreme Court pointed out: “Numerous courts have rejected similar attempts by oil and gas companies to reframe complaints alleging those companies knew about the dangers of their products and failed to warn the public or misled the public about those dangers. The Ninth Circuit did so in this case. And in other cases alleging similar deceptive promotion and failure to warn torts, the Fourth Circuit, Tenth Circuit, and the Districts of Connecticut, Massachusetts, and Minnesota have also rejected attempts to characterize those claims as being about emissions and pollution.”
Graves agrees with the courts’ determinations that Big Oil and its allies are mischaracterizing or misrepresenting what these climate accountability cases are about. “I do think there’s a way in which [fossil fuel companies] are misrepresenting the claims against them, which are about repeated acts of misrepresentation. So, there is I suppose either an irony or a consistency there,” she said. The question now is whether the US Supreme Court will also reject the industry’s attempted reframing of these cases. Industry lawyers and allies made the same characterizations of the claims against them in previous Supreme Court petitions on more procedural issues. But in April 2023, almost exactly year ago to the day, the Supreme Court declined a handful of these petitions, effectively allowing the cases (including Honolulu’s) to advance in state courts. Flatt said that is an encouraging sign. “I don’t think the US Supreme Court would agree with the characterization that this is a legal attempt to regulate interstate greenhouse gas emissions. I don’t. Now, I can’t make predictions about this current US Supreme Court because it’s hard to know who would do what. But at least from what they have shown so far, they have refused to rule in favor of these companies that are the defendants in these cases to have the cases moved to federal court,” he said. A “Parade of Horribles” The amici briefs also contain a lot of rhetoric expressing perhaps exaggerated concerns around potential impacts of major fossil fuel companies being held liable through the courts. Several of the amici for example argue that the litigation, if successful, would have the effect of “crippling” the fossil fuel industry. They claim that this would be especially harmful for consumers; the Washington Legal Foundation, for example, asserts: “It may cost $200 to fill a tank with gas once the energy companies factor in uncapped state-law liability for their actions around the world.” While this claim around raising the price of petroleum over time is “potentially plausible,” according to Flatt, he said it is not the courts’ job to consider this as it presents a policy issue rather than a legal matter. “The amici in this case, I believe, are expressing a parade of horribles that is not necessarily what is going to happen, and particularly not what this specific case is about,” he said. The brief from API and several other oil and gas trade associations is especially laden with this kind of rhetoric. “Taking the petroleum industry out at the knees would harm the American workforce and family, killing jobs and devastating retirement plans,” the brief argues. “Without this Court’s intervention, plaintiffs around the country will take a wrecking ball to the petroleum industry—and, in turn, to the entire economy,” it also asserts. Graves said she thinks this brief is “certainly fearmongering.” But, she noted, that is part of API’s job, to “mount PR campaigns that are generally based on fearmongering.” In this case, she sees the brief as part of the industry’s strategy to try to get the Supreme Court’s attention so that conservative justices may be inclined to sympathize with it. “I have no doubt that this another effort to manipulate and rig the rules of the game to favor the fossil fuel industry and try to get this Court to help the industry avoid legitimate, rightful accountability in Hawaii and beyond,” Graves said. Honolulu will have a chance to respond to Big Oil’s petition seeking to quash its suit. It is expected to file its reply brief by May 1.
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Piece originally published by Drilled
In late December, a federal district court judge in Oregon issued a ruling that put a landmark youth constitutional climate lawsuit against the federal government firmly back on path towards trial. “The judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel production has caused,” US District Judge Ann Aiken wrote in her December 29, 2023 opinion denying the government’s latest bid to toss out the 2015 Juliana v. United States case. The Juliana case contends that by promoting and perpetuating a fossil fuel-based energy system despite full awareness of the catastrophic and irreversible climate consequences, the US federal government has threatened the very ability of youth and future generations to live fully healthy, safe and prosperous lives, denying them the basic rights to “life, liberty and the pursuit of happiness” that every American citizen is supposedly guaranteed. James Gustave Speth, an environmental advocate and expert witness in the Juliana case, documents this pattern of government conduct in his book They Knew, calling it “the greatest dereliction of civic responsibility in the history of the Republic.” Now, it appears questionable whether the 21 young plaintiffs in Juliana, which has been making its way through the courts for 9 years now, will ever get their day in court—despite the current administration’s claims that it is working for climate action. “At every turn the government has fought like heck against these young people,” said James May, an environmental law professor at Widener University Delaware Law School. Since the Juliana lawsuit was first filed in 2015, the federal government has seemed hell bent on stopping it in its tracks. The US Department of Justice (DOJ) has filed more than a dozen requests to pause proceedings and half a dozen extraordinarily rare emergency petitions. Earlier this month the DOJ submitted yet another mandamus petition to the Ninth Circuit Court, its seventh overall, which legal experts say is unheard of in American civil litigation. “I was a federal public interest litigator for a quarter of a century. I don’t know of anything else ever like it,” May said. According to the Oregon-based nonprofit law firm Our Children’s Trust, which represents youth in multiple constitutional climate lawsuits against governments, the US government’s conduct in Juliana amounts to “political persecution” of their young clients. In a recent filing with the district court, attorneys with Our Children’s Trust say that in the 40,000+ cases in which the DOJ is defending the government, Juliana is the only one where government lawyers are resorting to such extreme tactics. “These brave youth are the equivalent of citizen whistleblowers on the government’s fossil fuel energy system, and the evidence of its conduct the government seeks to hide from the public,” the youths’ attorneys write, “and they are being targeted unlike any other group of plaintiffs in any case in U.S. history as a result.” “People should be outraged at what their government is doing,” Andrea Rodgers, senior litigation attorney with Our Children’s Trust, told me by phone. “Going to these kinds of lengths to silence children, I mean it’s just preposterous.” The government’s many attempts to quash the case (which was supposed to go to trial in 2018) during the Trump administration are perhaps unsurprising. Those tactics saw some success when a Ninth Circuit panel decided to dismiss the suit in a divided 2-1 opinion in January 2020. Undeterred, the Juliana plaintiffs and their legal team pressed on, asking permission from Judge Aiken to file a revised and narrower version of their complaint, a request she granted in 2023. But if they were expecting an easier time with a Democratic administration, the Juliana lawyers were soon disabused of any such belief. With the case reactivated, the government promptly tried to get the case dismissed once again. They were joined by 18 Republican attorneys general, who attempted to join the case as “interlocutors.” When that many Republican attorneys general join together, it’s a clear indication that a case has become a project for the Republican Attorneys General Association (RAGA), which works both to elect more Republican attorneys general and to bring those in office together on important constitutional cases. “They have a political agenda to protect gun rights, to put limits on voting rates, to stop women from having access to, uh, choices about their, their health and, and childbearing and abortion. And they also have a climate agenda. And on their climate agenda is the Juliana case,” Julia Olson, founder, co-executive director and chief legal counsel for Our Children’s Trust, told Drilled at the time. “And they have decided that this case has a real shot at winning, I think, and really establishing the constitutional law around the extensive harm being caused by this crisis and by energy policies.” Olson said the Biden DOJ has so far been entirely aligned with the Republican attorneys general. “In many cases, the policies of the Biden administration are not aligning with what the department of justice is doing in cases that have a huge bearing on those policies,” she said. “The Biden Administration is continuing to fight this case and at this point has not shown any non-alignment with the Trump administration or the red states for that matter.” Aiken rejected the DOJ’s bid to dismiss the case in December, and the Biden DOJ is now resuming the same aggressive tactics used by the Trump administration to prevent a trial. Its latest petition to the Ninth Circuit could be a make-or-break moment for Juliana. That court could opt to end the case once and for all by clarifying that it meant for the case to be dismissed in its entirety when it ruled in 2020, which is what the DOJ is arguing. If the Ninth Circuit declines the government’s petition, the US Supreme Court could potentially quash it at the government’s invitation. Otherwise, Juliana would finally go to trial at the district court in Oregon as Aiken has ordered. The Juliana case was the first constitutional climate case of its kind filed in the U.S. What ultimately happens with this groundbreaking climate litigation against the federal government could have profound implications and consequences for climate, accountability and democracy, positive or negative depending on the outcome. As Bill McKibben has said, Juliana is a “breakthrough case that could help America finally do what it needs to do to face up to the great existential crisis that is climate change.” If there is a trial, the US government could very well be held accountable for systemic policies and actions that worsen the climate emergency, from long-standing fossil fuel subsidies to the government’s role in incentivizing car-dependent transportation, permitting oil and gas infrastructure such as pipelines and export terminals, and authorizing fossil fuel production on public lands. Based on the evidence presented at trial, the district court could declare that the government’s support of fossil fuels contributes to dangerous climate change, and therefore amount to violations of plaintiffs’ fundamental rights under the US Constitution. Such a declaration could compel the federal government to reassess its policies and practices and make meaningful changes. Even if the declaration is struck down on appeal—a distinct possibility if the case gets to the Supreme Court—the trial could potentially still bring about accountability through the court of public opinion. By telling a clear and compelling story backed by scientific evidence that the government is knowingly endangering young people, the trial could spur the public to demand a course change in the government’s handling of the climate crisis. The trial could provide the Biden administration a chance to defend its climate record, and to explain how it is addressing climate change—what Biden himself repeatedly calls the “existential threat” of our time. The president has kept some of his climate promises: this administration passed the largest clean energy investment in history with the Inflation Reduction Act, and, most recently, paused LNG export approvals. In his statement on the LNG pause, Biden called out MAGA Republicans “condemning the American people to a dangerous future” and said his administration “will heed the calls of young people” demanding climate action. If Biden means what he says, then why is his administration resorting to the same playbook that the Trump DOJ used to try to prevent the Juliana plaintiffs (and their expert witnesses) from being heard at a trial? As Our Children’s Trust argues in their recent filing, “It would be a colossal failure of democracy, the rule of law, and the third branch of government if [this] case never goes to trial.” In addition to setting a dangerous precedent of the Executive branch interfering in the judicial branch’s business, if it continues with its crusade to end this case, the Biden administration may see political consequences and backlash—especially from the young people his campaign is counting on to show up and vote in November. “[The youth plaintiffs] just want to be heard, and the Joseph R. Biden administration wants to deny them that,” May said. “It’s a missed opportunity politically I believe for the Biden administration.” “I don’t see the trial as either a waste of time, or necessarily bad for the Biden administration,” said Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School. “Denying these young people their day in court will have worse political consequences.” Potential political consequences aside, the Biden DOJ resuming the Trump DOJ’s extreme legal tactics in fighting this litigation could have important implications for the rule of law. If the government gets its way and the case never gets to trial, it arguably would mean that the US courts are abdicating their duty to review the conduct of the political branches alleged to be unconstitutional. The implication is that, when it comes to the existential threat of climate change at a systemic level, the political branches—in this case the executive branch—are beyond judicial scrutiny. “The Biden administration and Merrick Garland announced their narrative in addressing what’s referred to as an insurrection on January 6 that no one is above the law. Yet here in this case, brought in federal court with a federal court judge finding that the claims are constitutionally cognizable, meaning properly pled, the Biden administration would prefer not to be subject to the law,” May explained. “It goes back to this whole idea of the rule of law that the Biden administration has trumpeted as the lynchpin of democracy, and accountability, and political integrity, yet when it’s a decision that goes in the direction that makes the administration uncomfortable, all bets are off.” Some legal scholars say the Juliana v. US climate case has always been a stretch given the “sweeping” nature of the claims. The case challenges not one particular federal agency or piece of legislation but the federal government’s climate policies and decisions regarding the fossil fuel energy system writ large. Named defendants in Juliana include the United States and the Office of the U.S. President, plus an array of executive branch offices and agencies and Cabinet heads. While these individual officials, now in the Biden administration, differ from those in the original 2015 complaint, the allegations remain largely the same. “The new complaint continues to challenge the federal government’s aggregate actions that make up the nation’s fossil fuel energy system and contribute to climate change,” Rodgers explained. The Biden administration’s approval of the Willow oil drilling project in Alaska is just one example of a decision, among many others, that make up the aggregate acts that the case challenges, she said. Despite its broad scope, at the end of the day, the case alleges violations of individual rights under the Constitution. The only remedy plaintiffs now seek is for a court to declare that those rights existed, they are indeed protected by the Constitution, and the federal government has violated these fundamental rights of young people through its role in worsening the climate emergency. As Judge Aiken wrote in her December opinion, “At its heart, this lawsuit asks the Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.” She also notes: “Over the course of American history, courts have corrected longstanding, systemic wrongs of political branches that encroach on the fundamental rights of citizens.” Beyond what the Juliana lawsuit’s fate may portend for politics and the rule of law in the US, it ultimately comes down to whether or not climate science will at last get to see the light of day in open court. The science is crystal clear that avoiding utter climate calamity requires rapidly phasing out fossil fuels. Yet this is not happening—especially not in the United States. The US, already the world’s largest historical carbon emitter, is on course to generate the most carbon pollution out of any country from planned oil and gas expansion through 2050. When it comes to federal energy decisions on fossil fuels, the government’s policies simply do not square with climate science, even with climate-friendly politicians in charge. Oil production under Biden has reached record levels and his administration’s approvals of oil and gas drilling on public lands are on par with those under Trump. The DOJ is “afraid of what will happen when these young people and experts talk about fossil fuels and climate change in open court, and when the government is put under oath. The truth will come out that the U.S. Government has given the fossil fuel companies a license to harm,” Olson said in a press release. A trial in the Juliana case would expose the U.S.’s climate double-speak. As Olson suggests, this could be why government lawyers are going to such extreme lengths to try to avoid a trial at all costs. Just look at what happened with the historic climate trial in Montana last summer, which saw climate scientists testify in support of the youth plaintiffs. The state government defendants had no substantive defense to counter the robust science. Bringing climate science as evidence into the courts is powerful. The ball is now in the Ninth Circuit’s court, as it will either direct the plaintiffs to respond to the government’s petition - or it will simply deny the petition. Rodgers said they expect to hear from the Ninth Circuit in the coming weeks. It remains to be seen whether the Juliana plaintiffs and their expert witnesses will ever get a chance to be heard at trial. “It’s been so painfully clear that if a powerful interest doesn’t want something to proceed, they have a litany of ways to stop it,” plaintiff Nathaniel Baring wrote in a recent declaration filed with the district court. “In this case, we are up against our own Department of Justice and the executive branch of our federal government trying to keep us out of court.” Despite the government’s relentless attempts at obstruction, Our Children’s Trust says that the young people they represent are not backing down. “[The government] wants them silenced,” Rodgers said. “It is our goal to do everything in our power to get these young people their day in court.” Story originally published by DeSmog
When Royal Dutch Shell lost a landmark climate lawsuit in The Netherlands, climate advocates said the Dutch court’s ruling put polluters and their financiers on notice. Now, the Dutch NGO that successfully sued Shell over its climate plans is taking those financial backers to court in a case that could help reverse the global banking sector’s support of fossil fuel firms and their activities. On January 19, Milieudefensie (Friends of the Earth Netherlands) announced it is initiating legal action against ING, the Netherlands’ largest bank and a major funder of U.S. liquefied natural gas (LNG). In a letter addressed to ING CEO Steven van Rijswijk and the first step in litigation, Milieudefensie says it believes the bank is in breach of its “duty of care” obligation under Dutch law. “ING’s climate policy is miles away from what is necessary to achieve the 1.5°C target,” the letter asserts, referring to the Paris Agreement’s more ambitious climate objective. Since that agreement’s adoption in December 2015, ING has issued 83.2 billion euros in bonds to the fossil fuel industry, Milieudefensie says. “We are starting a new lawsuit against ING, the biggest commercial bank in the Netherlands, because it is jeopardizing our future by continuing to finance and support companies that exacerbate the climate crisis,” Milieudefensie campaigner Nine de Pater told DeSmog by email. “As a financial institution, ING has the responsibility to be the banker of our future, not the banker of the climate crisis.” Here, Milieudefensie is taking a similar legal approach as in its winning case against Shell. In May 2021, The Hague District Court in the Netherlands accepted the NGO’s arguments that Dutch law required Shell to align its business with the Paris Agreement objectives under the law’s “duty of care” obligation, and ordered the global oil giant to slash its CO2 emissions 45 percent by 2030. Importantly, the court’s historic ruling, which the corporation is appealing, applies not just to Shell’s direct emissions from extracting fossil fuels around the world, but also to those from using its products. (After the verdict, Royal Dutch Shell moved its headquarters from The Netherlands to the United Kingdom and dropped “Royal Dutch” from its legal name.) Akin to that demand, Milieudefensie now seeks to compel ING to cut its CO2 emissions roughly in half by 2030 and align its policy with the Paris Agreement’s 1.5°C target. The environmental group also wants the bank to stop doing business with polluting companies that fail to demonstrate that they have credible climate plans. That means cutting ties with oil and gas clients expanding fossil fuel production, which scientists say would send the world’s average temperature soaring past Paris climate targets. In a statement, ING defended its ongoing financing of fossil fuel activities, saying it is simply “a reflection of the current global economy.” ING maintains that it is making progress in its transition towards a lower carbon portfolio and says it strongly believes that engaging with its clients is where it can make the most impact, as opposed to exiting certain clients or sectors — though it has parted ways with several coal firms over this issue. “We’re confident that we take impactful action to fight climate change,” said Arnaud Cohen Stuart, head of business ethics at ING. “We will of course respond in court if necessary.” For some observers, ING’s targeting could come as a surprise. Last October, its CEO called on governments in Europe and Australia to offer greater policy support for greening grids as it seeks to reduce the residential sector emissions from its mortgages. And in the wake of last month’s global climate talks, the bank announced it would stop funding upstream oil and gas projects by 2040 while aiming to triple its new financing of renewable power generation by 2025. Milieudefensie said these are “baby steps in the right direction” and called the 2040 fossil fuel deadline “15 years too late.” A sustainable finance expert in the Netherlands said the bank’s current climate policy falls short in some important ways. “[ING] has not set targets for the whole of its portfolio, and most targets are intensity targets [rather than absolute emissions reduction targets],” Rens van Tilburg, director of the Sustainable Finance Lab at Utrecht University, told DeSmog. “But maybe the most clear example of how ING is not Paris-aligned is its continued financing of oil and gas companies that develop new wells, despite the clear scientific consensus that this is not compatible with limiting climate change.” By ING’s own measure, it is responsible for 61 megatonnes of financed emissions in 2022. That amounts to more than the annual emissions of some countries like Sweden and Cambodia, according to Miliuedefensie’s letter. That same year, the Dutch bank was the fourth largest financier of LNG in the world, providing more than $1.2 billion to the sector. ING has doled out nearly $3 billion in financing to LNG since 2016, according to a 2023 report from Rainforest Action Network and partners. The report’s data shows that Venture Global and Cheniere Energy, two companies behind the massive LNG buildout in the U.S. Gulf Coast, were the Dutch bank’s top LNG clients in 2022. ING provided over $886 million to Venture Global Plaquemines LNG LLC, and $220 million to Cheniere Corpus Christi Holdings LLC. But the bank’s overall financing of U.S. LNG may be even higher. Dutch investigative journalism platform Pointer reports the amount at around $7 billion, making ING the third largest funder of U.S. LNG infrastructure, behind two Japanese banks. In financing such activities, Milieudefensie charges that ING is “contributing to dangerous climate change and human rights violations caused by these clients, and this is unlawful.” “Come Hell or High Water”: Banks Face Rising Climate Litigation Risk Milieudefensie says its legal action against ING is building off the NGO’s successful verdict in its case against Shell, arguing that the court’s previous finding that the oil major is legally obligated to align its business with the Paris Agreement applies to other large corporations. “Big polluting companies must take the lead in reducing their CO2 emissions quickly and dramatically,” Roger Cox, an attorney working with Milieudefensie, said in a statement. “This is the only way to limit warming to 1.5 degrees. That means big polluters like ING and Shell must also take responsibility.” Cox led the climate case against Shell, which is slated to come before the Dutch Court of Appeal in April. Van Tilburg, the sustainable finance expert, told DeSmog that the 2021 ruling determining Shell has a legal duty to care for society “holds for financial institutions” as well. “And not only in the Netherlands,” he said, pointing to the growing volume of climate liability lawsuits around the world. As the climate crisis intensifies and its damages multiply, communities and campaigners are increasingly turning to courts in efforts to hold governments and corporate polluters accountable. Over the last few years, these lawsuits have begun targeting corporate defendants beyond the oil and gas industry, including sectors like transport, food and agriculture, plastics, and finance. Last year, environmental groups in France sued the French bank BNP Paribas over its continued financing of fossil fuels. The groups say their action is the world’s first climate lawsuit against a commercial bank. That case, and now the forthcoming lawsuit against ING, is a signal that the banking sector faces real climate-related legal risk, experts say. Frank Elderson, member of the European Central Bank’s (ECB) executive board, warned in a September speech: “Litigants are coming after the banks, come hell or high water.” According to a new report from the ECB, the portfolios of 90 percent of European banks analyzed are not actually aligned with global climate goals, and many of these banks, Elderson writes in a blog post, “could face elevated litigation risk.” In March last year, U.S. credit rating agency Fitch Ratings also commented on the increasing climate litigation risk facing European banks. Such lawsuits “could set precedents and spur banks to accelerate their carbon-neutrality strategies and their phase-out of fossil fuel financing,” the agency said, particularly if a bank loses a climate lawsuit. This is why Milieudefensie’s action against ING is so important, van Tilburg explained, because a successful outcome could reshape the wider financial sector’s support for fossil fuels. It would allow banks to align with the Paris target without fearing their competitors will jump in, he added. “Other banks will understand that they need to get their act together or risk being brought to the court as well,” he told DeSmog. Story originally published by DeSmog
Climate litigation had a momentous year in 2023. Courts worldwide heard evidence and arguments at pivotal trials and hearings. Landmark rulings marked progress in holding governments to account for climate inaction or denial, and new climate cases continued to be filed. With climate lawsuits now totaling nearly 2,500 worldwide, it is clear that courts have become a critical venue for seeking climate justice and accountability. Here are some of this year’s highlights. Major Court Victories United States In a groundbreaking ruling in August, Judge Kathy Seeley of the First Judicial District Court of Montana found in Held v. State of Montana that the state’s ongoing support for and promotion of fossil fuel development — including directing state regulators not to consider a project’s climate impacts during the permitting process — violated Montana’s constitutional guarantee of the right to a clean and healthful environment, which extends to a stable climate. This case, brought by 16 children and teens against their state government in 2020, was the first constitutional climate case in the U.S. to reach trial, as well as a case brought by youth plaintiffs. It was also just the second time that climate scientists have given expert testimony in a trial setting in a U.S. court. Montana — a state known for both its natural splendor, and its coal mines and oil and gas operations — had no answer to the robust scientific evidence presented to the court. The scientists who testified on the plaintiffs’ side included experts such as award-winning climate scientist Steven Running, who has contributed to Intergovernmental Panel on Climate Change reports; ecologist Daniel Fagre, an expert on Montana’s Glacier National Park; and Mark Z. Jacobson, a world-leading expert on renewable energy and the energy transition. Legal experts say this ruling could have broad implications. “It may provide something of a roadmap for future cases,” Jennifer Rushlow, dean of the Maverick Lloyd School for the Environment, professor of law, and faculty director of the Environmental Law Center at Vermont Law School, told DeSmog. According to Delta Merner, lead scientist at the Union of Concerned Scientists’ Science Hub for Climate Litigation, this victory also demonstrated the importance of bringing climate science into the courtroom. “The judge’s dismissal of Montana’s feeble defense underscored the irrefutable nature of climate science,” Merner wrote in a recent blog post, “offering hope for future cases and represents a crucial step toward aligning legal systems with the urgency of climate action.” Europe As the annual United Nations climate conference — known as COP28 — kicked off in Dubai on Nov. 30, an appeals court in Belgium handed down a victory in a human rights lawsuit brought by an association of Belgian citizens against the national government and several regional jurisdictions. The court ordered the Belgian government to slash carbon emissions by at least 55 percent (below 1990 levels) by 2030. This is only the second time that a court has imposed a binding emissions reduction target on a country, — following the historic 2015 Urgenda ruling in the Netherlands. This ruling followed a 2021 decision in the same case, in which the court ruled that the governments had violated their legal obligations, under Belgian civil law and European human rights law, in failing to protect citizens from dangerous climate change. Lucy Maxwell, co-director of the Urgenda Foundation’s Climate Litigation Network, told DeSmog this is only the third time any court has “order[ed] a government to close the ambition gap between its weak [greenhouse gas] target and what science demands.” In 2021, Germany’s highest court ordered the German government to revise its national climate law, finding it to be insufficiently protective of youth and future generations. In Norway, a climate lawsuit trial got underway during the same week as the Belgium ruling. Greenpeace Nordic and Young Friends of the Earth Norway have challenged the Norwegian government’s approval of three new North Sea oil fields. This case builds upon a previous legal challenge to Norway’s licensing of offshore oil and gas development. This case has been strengthened by authoritative statements from expert sources, such as the International Energy Agency, emphasizing that new fossil fuel development is inconsistent with the goal of limiting global temperature rise to 1.5 degrees C. “This case in Norway joins a rising tide of litigation around the world challenging the decisions to expand fossil fuels in the face of mounting climate chaos,” Nikki Reisch, director of the Climate and Energy program at the Center for International Environmental Law, said during a press conference at COP28. It is a reminder that “governments have existing legal duties outside and will be held accountable to them in court,” said Reisch. Human Rights and Accountability Cases Advance As devastating climate impacts intensify and accelerate, courts are increasingly seeing cases alleging that insufficient government climate policies amount to human rights violations. United States In the U.S., climate accountability lawsuits targeting major oil and gas companies for alleged deception and disinformation made significant advances in 2023. The Hawaii Supreme Court heard an appeal from the industry defendants in City and County of Honolulu v. Sunoco LP et al. in August, and ruled on October 31 to uphold the trial court’s denial of their motions to dismiss. While another motion to dismiss, claiming that the lawsuit violates the industry defendants’ free speech rights, is still pending at Hawaii’s Intermediate Court of Appeals, the Supreme Court’s ruling puts the case firmly on track towards trial. Several climate liability suits brought by municipalities and states across the U.S. also are moving ahead in state courts, aided by the Supreme Court’s April decision to decline petitions from the industry defendants that sought to procedurally derail the litigation. These cases had been tied up for years while the fossil fuel industry attempted to get them moved to federal courts. The Supreme Court’s decisions declining to intervene, Rushlow said, will “unlock a lot of movement in cases that have just been plugged up.” “It does feel like some of the chains were broken this year,” she told DeSmog. The Supreme Court has so far denied industry petitions in climate lawsuits filed by the states of Rhode Island and Delaware; the cities of Baltimore, Maryland and Hoboken, New Jersey; Colorado’s Boulder and San Miguel counties and the city of Boulder; and California’s San Mateo, Santa Cruz and Marin counties and and the cities of Richmond, Imperial Beach, and Santa Cruz, as well as Hawaii’s Maui and Honolulu counties and the city of Honolulu. Europe In 2023 the European Court of Human Rights held its first-ever hearings in lawsuits challenging governments’ inadequate climate responses on human rights grounds. All three cases heard by the European Court of Human Rights seek to compel governments to align their climate policies with what science demands in order to safeguard human rights. In late March, the Strasbourg-based court heard two climate cases. KlimaSeniorinnen v. Switzerland was brought by a group of elderly Swiss women who are vulnerable to worsening health impacts from extreme heat. Carême v. France was filed by a French citizen and the former mayor of a coastal village in northern France that is exposed to heavy flooding. In September, the Human Rights Court heard a third climate case, this one brought by six Portuguese youths against 32 European countries in what one legal expert described as a “truly historic” hearing, marking the first time that dozens of national governments have been forced, in a single case, to defend their climate policies before a court. The young people launched their lawsuit in 2020, following several years of record-breaking heat in Portugal, as well as deadly wildfires in 2017. The year also saw an unsuccessful attempt in the UK to hold an oil company’s board of directors liable for disregarding climate risk. The UK-based environmental law organization ClientEarth brought a first-of-its-kind lawsuit in February against Shell’s board of directors, arguing that Shell’s failure to align its business and energy transition strategy with the goals of the Paris Agreement breaches UK corporate law. The High Court of England and Wales, and subsequently the Court of Appeal, ultimately dismissed the case. However, some experts believe it could be just the beginning of climate litigation against corporate boards of directors. Asia-Pacific In Australia, a class action climate lawsuit against the federal government, filed by two Indigenous Torres Strait Islanders on behalf of all of the area’s island inhabitants, advanced to trial with a two-part evidentiary hearing. At the first hearing in June, held in the Torres Strait Island communities, the court heard and saw evidence directly on how climate change is adversely affecting the area. The second hearing, which was held in November in federal court in Melbourne, featured expert testimony from climate scientists. The lawsuit seeks a court order that would compel the Australian government to take measures that will protect the Torres Strait Islands from climate harms, and to reduce Australia’s greenhouse gas emissions in line with the best available climate science. New Climate Cases United States In June, Multnomah County, Oregon – home to Portland, the state’s largest city – sued more than a dozen oil and gas companies and several of their trade associations. The county seeks to hold them liable for billions of dollars in damages related to the deadly heat dome that scorched the Pacific Northwest in June 2021, including $50 million in actual damages and $1.5 billion in future damages. The county is also seeking $50 billion to study, plan and upgrade municipal services and infrastructure to safeguard against future extreme heat events. The 2021 heat dome killed more than 60 people in Multnomah County, where it has been described as a mass casualty event. Multnomah County’s lawsuit is the first climate case to name McKinsey & Company, a corporate consulting giant that has worked on the behalf of fossil fuel companies. This signals the growing potential for PR agencies and consulting firms that help bolster the fossil fuel industry to be implicated in climate litigation. In September, California entered the fray. The state’s climate lawsuit, filed against five oil and gas majors and the American Petroleum Institute, charges the defendants with deliberately deceiving Californians for decades about the climate risks of their products and continuing to mislead consumers through greenwashing and false advertising. The state seeks monetary damages, paid into an abatement fund, to help the state pay for escalating climate-related costs. Given California’s position as the world’s fifth largest economy, as a national leader in climate action — and as an oil-producing state itself — this suit is a seismic shift in the legal fight against Big Oil, adding substantial pressure to calls for fossil fuel industry accountability. Gov. Gavin Newsom and Attorney General Rob Bonta have encouraged other states and jurisdictions to join them in suing fossil fuel titans for lying about the harmful impacts of the use of oil, gas, and coal. This strand of U.S. climate litigation is grounded in evidence of the industry’s deception, though the legal claims and remedies sought vary to some degree. Several cases are based strictly on state consumer fraud claims and seek judicial decrees to end the alleged deceptive conduct. Others have been brought under state tort claims like nuisance and failure to warn, and demand monetary damages. Some feature a combination of consumer fraud and cost recovery approaches. In early December, Our Children’s Trust, the nonprofit law firm behind the Held case in Montana, launched a new lawsuit against the Biden administration on behalf of over a dozen California youth. The case, Genesis B. v. United States Environmental Protection Agency, alleges that the EPA is knowingly endangering the health and welfare of children by permitting unsafe levels of greenhouse gas emissions, and further discriminates against them by discounting the economic value of their lives in regulatory cost-benefit analyses. The 18 youth plaintiffs, who range in age from 8 to 17 years old, are seeking a declaration that their constitutional rights have been violated, along with an order clarifying the standard of judicial review to protect the rights of children as a distinct and protected class — meaning a decision on whether U.S. law includes unique protections for children in the context of climate change. On December 20, a pair of Native American tribes in Washington State also launched accountability lawsuits. The Makah Indian Tribe and the Shoalwater Bay Indian Tribe each filed complaints in King County Superior Court against six major oil and gas companies: ExxonMobil, BP, Chevron, Shell, ConocoPhillips, and Phillips 66. Alleging historical and ongoing deception by the companies — including promoting and funding climate denial and, more recently, portraying their businesses as climate-friendly through misleading advertising — the lawsuits aim to make them “pay for the damage their deceptive conduct has caused and will cause for decades to come.” Europe In Italy, climate campaigners and citizens sued Italian oil major Eni in May for alleged deception and greenwashing. The case, brought by Greenpeace Italy, ReCommon, and 12 Italian citizens, argues that Eni has deliberately downplayed the climate dangers of its products, and has failed to align its business strategy with global climate goals. Saying that this violates human rights law, the groups and citizens have demanded that the court order Eni to reduce its emissions by at least 45 percent by 2030. The case builds on the successful 2021 Milieudefensie case against Shell in the Netherlands, in which the Dutch court determined that Shell has a legal duty to respect human rights, and ordered the company to slash emissions across its supply chain by 45 percent by 2030. The Eni case came as new evidence emerged indicating Eni knew of the climate consequences of its products at least as early as the 1970s, yet continued to market methane gas as a clean fuel. Legal Threats to Activists This year also saw new lawsuits brought by oil majors against climate campaigners. In November, Shell brought a lawsuit of its own against Greenpeace UK and Greenpeace International, in response to protestors boarding a Shell oil platform earlier in the year. According to a Greenpeace press release, Shell has demanded that Greenpeace permanently cease protests at its offshore infrastructure or face potential damages of $8.6 million. The group described the lawsuit as “one of the biggest legal threats against the Greenpeace network’s ability to campaign in its more than 50-year history.” Greenpeace has said it will agree to the protest ban if Shell agrees to “stop wrecking the climate,” by complying with the Dutch court order in the Milieudefensie case. In August, Eni targeted some of the climate activists suing the company, announcing potential plans to countersue Greenpeace Italy and ReCommon on defamation grounds. Looking Ahead to 2024 Expect even more new climate lawsuits to be filed over the next year. United States Among them, Our Children’s Trust has stated that it plans to launch a new youth climate lawsuit against the state government of Alaska, while Milieudefensie has said it will be suing a Dutch financial institution. Friends of the Earth International’s Sara Shaw said, during a COP28 press conference, that Milieudefensie will announce the name of the company on January 19, 2024. In Hawaii, a second constitutional climate case brought by youth is set to go to trial in June, when Honolulu’s Environmental Court hears the lawsuit Navahine F. v. Hawaii Department of Transportation. In this lawsuit, 14 Hawaiian children and teens have sued the state transportation agency, contending that it authorizes unsafe levels of climate pollution, which violates their rights under the Hawaiian state constitution. “It seems like we could be coming up on some busy times for [climate] trials,” said Vermont Law’s Rushlow. “It does feel like a significant moment.” Europe Significant court decisions may also be made, such as judgments in the climate cases heard this year by the European Court of Human Rights. The coming year will see an evidentiary hearing in the Luciano Lliuya v. RWE case in Germany’s Hamm Regional Court. In this case, Peruvian farmer and mountain guide Saúl Luciano Lliuya has sued German energy utility RWE, aiming to hold the company liable for its contribution to global greenhouse gas pollution that has resulted in localized flooding of his village as mountain glaciers melt. Additionally, an appeals court in the Netherlands will hear Shell’s appeal in the Milieudefensie v. Shell case, as the company seeks to overturn the groundbreaking 2021 verdict holding the company accountable for failing to align its business with the decarbonization aims of the Paris Climate Agreement. Milieudefensie’s Eline Zeilmaker said during a COP28 press conference that the hearing is scheduled to start on April 2, 2024, with a final ruling hopefully coming by the end of the year. Asia-Pacific Further hearings in the Torres Strait Islanders’ case against Australia are also scheduled for April in Cairns. A ruling is expected later in the year, according to Grata Fund — an Australian foundation supporting the litigation. The UN climate negotiations in Dubai have wrapped up following a historic push to compel the UNFCCC Conference of the Parties to confront what is at the core of the climate crisis – to finally use the ‘F’ words in the official text. While it is significant that the outcome document recognized (after nearly 30 years) the need to transition away from fossil fuels, it is immensely far from the ambitious agreement that climate advocates called for. The question now seems to be, where do we go from here? Some have suggested the whole process is broken, at a point of near-total takeover by the major polluters (and abetted by PR firms) and should be fixed by changing the rules of the game. Others say we should look to mechanisms and fora outside the UNFCCC. Initiatives are underway to work towards a Fossil Fuel Nonproliferation Treaty, to criminalize ecocide, to seek climate change advisory opinions from several international courts and tribunals, and to transform anthropocentric legal systems by adopting rights of nature laws. All of these approaches (and more) are needed to overhaul the status quo governance response to the climate emergency. What does seem clear at this point is that the law is an essential part of pursuing climate action and accountability. These two ‘A’ words go together, and, as climate journalist Amy Westervelt has said, accountability is not just another climate solution but actually has to be the first one. This is where climate accountability litigation – lawsuits generally aimed at holding governments or corporations accountable in the context of the climate crisis – comes in. A lot is happening in this space. In just the last two weeks at COP28 there have been discussions, in side events and press conferences, touching on the increasing importance of bringing climate into the courts. I’ll get to some highlights of these discussions in a moment. But first it is worth mentioning a couple of developments in climate litigation that arose at the same time that COP28 was underway. While world leaders and delegates assembled in Dubai, courts in Europe and the US saw climate accountability in action with a trial in Norway, a verdict in Belgium, and a new lawsuit filed in California. Governments “Will Be Held Accountable” in Court The trial, held in Oslo District Court from November 28 to December 6, put the Norwegian government on defense over its recent approvals of three new oil fields in the North Sea. Greenpeace Nordic and Natur og Ungdom (Young Friends of the Earth Norway) argue in their latest lawsuit against the Ministry of Petroleum and Energy that assessments of the fields’ expected contribution to global emissions were highly insufficient or (for one of the fields) not done at all. The groups base their legal challenge on a ruling from Norway’s Supreme Court determining that the government has a duty to assess the climate effects of new oil fields under consideration. By approving the new fields, the Ministry has contravened climate science and the law, the case contends, in violation of the Norwegian constitution and the UN Convention of the Rights of the Child. A successful outcome in the case would mean “that the assessments we are disputing would have to be redone according to science, and that means a 1.5-degree [Celsius] scenario, and we know there is no room for new oil and gas in a 1.5-degree scenario,” Klimentina Radkova, climate and energy adviser and legal campaigner at Greenpeace Nordic, said during a COP28 press conference on December 6, speaking remotely from outside the courtroom in Oslo. Norway is among five wealthy countries that are responsible for 51 percent of planned oil and gas expansion through 2050, according to a September report from Oil Change International. Another recent analysis of planned fossil fuel expansion, the 2023 Production Gap Report, found that countries like Norway are set to produce more than double the amount of fossil fuels by 2030 than would be compatible with the 1.5 degree C warming limit. These production plans “are not just scientifically unsound. They are legally impermissible,” said Nikki Reisch, director of the Climate and Energy Program at CIEL. “This case in Norway is a reminder that no matter what happens in these halls at COP,” she added, speaking at the Dec. 6 COP28 press conference hosted by Greenpeace, “governments have existing legal duties outside and will be held accountable to them in court.” A verdict from the Brussels Court of Appeal in a climate lawsuit against Belgium demonstrates that this is already starting to happen. On November 30 – the opening day of COP28 – the court upheld the lower court’s finding that Belgium’s insufficient climate ambition violates domestic and international law, and went a step further in ordering the government to take all necessary measures to reduce emissions by at least 55% by 2030. This is only the second time, following the historic Urgenda case in the Netherlands, that a court has imposed a binding emissions reduction order on a country. Lucy Maxwell, co-director of the Climate Litigation Network (a project of Urgenda), said this is a “significant ruling for the 40+ similar cases pending against high-emitting governments globally.” In the US, the federal government is facing a new constitutional climate lawsuit brought by young people. This case, filed in federal court in California on December 10 as COP28 was in its final days, specifically targets the US Environmental Protection Agency (EPA). “EPA is the sole agency that was created to control air pollution and to protect public health,” said Andrea Rodgers, senior litigation attorney at the nonprofit law firm Our Children’s Trust. “For the last 50 years they’ve done just the opposite, by allowing amounts of climate pollution that EPA knows are life threatening to children.” Plaintiffs are 18 children and teens from California, and they allege that EPA knowingly endangers their health and welfare in violation of the US Constitution’s rights to equal protection and due process as well as the fundamental right to life. The case also charges EPA with discriminating against youth, particularly in discounting the economic value of their lives in regulatory cost-benefit calculations that favors present values over future ones. Although children and future generations are disproportionately burdened with climate impacts that worsen over time, they “do not have the political protections that adults have,” Rodgers explained. “That’s why they’re going to the courts.” The case is part of a burgeoning wave of rights-based climate lawsuits worldwide, many filed by youth, challenging governments’ responses to the climate emergency. Courts are increasingly recognizing the critical role they must play in this context. Speaking at a COP28 side event on December 10 – the first time that judges have convened institutionally at a UN climate summit - Chief Justice Luis Roberto Barroso of the Federal Supreme Court of Brazil said that courts have a duty to intervene on matters of climate change given the shortsightedness of politics, and the inability of some populations – like children and future generations – to have a voice in decision-making. In constitutional democracies, he said, courts not only act as a constitutional check on the other branches of government, but also act as an “enlightening” and representative force to address social demands that other branches have disregarded and to protect fundamental human rights. “History has shown that systemic changes almost always have been anchored in the legal system,” Christina Voigt, Chair of the IUCN World Commission on Environmental Law and a professor of law at the University of Oslo, said in her keynote address at the side event. “Courts and judges are an indispensable part of this transition. The climate challenge at its core is a justice challenge.” “It is inconceivable that a court won’t intervene in what will be, and already is, the biggest violation of human rights in the history of mankind,” Eline Zeilmaker, a senior legal advisor at Milieudefensie, said during Greenpeace’s Dec. 6 press conference at COP28. “After all, if the law does not protect us against the destruction of our society, there is no justice.” Corporate Climate Accountability: Potential Game Changer? Mileudefensie won a groundbreaking judgment in 2021 in its climate accountability lawsuit against Shell. The ruling from the District Court of the Hague in the Netherlands ordered Shell to reduce GHG emissions across its entire supply chain by 45% (relative to 2019 levels) by 2030. It is the first judicial ruling to recognize that a corporation has a legal obligation to mitigate climate pollution in order to respect human rights and abide by the Paris Climate Agreement. Shell has appealed the ruling, and according to Zeilmaker, the appeals court will hear the case in April 2024, with a decision hopefully coming by the end of next year. Although Shell appears to ignoring the trial court’s verdict as it doubles down on its core oil and gas business, Sara Shaw of Friends of the Earth International said at a December 10 COP28 press conference that the oil major is not legally permitted to disregard the ruling. “The original verdict said that Shell could not delay acting and that it must comply with the verdict regardless of when it appeals,” she said. Regardless of the outcome, when it comes to litigation targeting powerful corporate entities, “There is going to be resistance,” human rights attorney Steven Donziger said during a December 7 panel on climate litigation, part of We Don’t Have Time’s COP28 Climate Hub at American University. He can attest to this from personal experience, having been targeted (and convicted) in a corporate-led prosecution after successfully securing a $10 billion verdict against Chevron for its pollution and poisoning of indigenous communities in Ecuador. Still, Donziger said, climate litigation “is a necessity. It’s an extremely important component of the climate justice movement.”
Prof. William Snape, assistant dean and director of the Program on Environmental and Energy Law at American University’s Washington College of Law, sitting beside Donziger on the panel, highlighted the state-law based climate accountability lawsuits brought by municipalities and states in the US against fossil fuel entities as a particularly significant strand of this litigation. If just one of these cases is successful,” he said, “that would be multiple of billions of dollars of liability. That would begin to change the game” In September the state of California launched the latest of these cases, filing what Attorney General Rob Bonta says is a “game changing lawsuit” against five of the biggest oil and gas companies and their chief trade association. Speaking at a COP28 side event on December 3, Bonta explained the reason his office has decided to take Big Oil to court. “Big Oil has known since the ‘60s their product would cause climate change and damage the planet, and they purposely chose to deny the truth. Why? In pursuit of endless profits,” he said. “The deception from these greedy corporations needs to stop and they need to be held accountable for their misdeeds, thus our lawsuit.” Bonta’s remarks from Dubai came as swarms of fossil fuel lobbyists and oil and gas executives – including ExxonMobil CEO Darren Woods - were roaming the COP28 halls, and in the case of ADNOC’s Sultan Ahmed Al Jaber, presiding over the entire conference. Some campaigners have called out fossil fuel heads and lobbyists as “merchants of death.” A new report from Greenpeace Netherlands released during COP28 attempts to put some numbers behind that label, estimating that global heating driven by the emissions of nine major European oil and gas companies in 2022 alone could result in at least 360,000 premature deaths before the end of the century. A companion publication issued with the report explores potential “entry points” for criminally prosecuting fossil fuel companies for recklessly endangering human lives in five countries – the UK, Italy, France, the Netherlands, and the Czech Republic. “We believe that it is time that prosecutors take that responsibility, take all the evidence that is already there, and make use of those entry points to hold fossil fuel companies legally to account for the deaths that they are causing with their emissions” Lisa Göldner, Fossil Free Revolution Campaigner, Greenpeace International, said during a December 5 COP28 press briefing hosted by Climate Action Network International. “Compelling Action, Holding Polluters Accountable” With the final text of COP28 failing to reflect the unwavering call for a full, fast, fair, and funded phase out of fossil fuels, as climate justice grounded in the science demands, the most climate-vulnerable communities will continue to turn to the courts amidst mounting loss and damage, aiming to hold the world’s biggest government and corporate climate polluters accountable. “We are confronting the sobering reality of a planet in peril,” said Prime Minister of Antigua and Barbuda Gaston Browne, “a planet that these large polluters are literally burning to the ground.” Speaking at a COP28 High-Level Party Event hosted by the Fossil Fuel Nonproliferation Treaty Initiative on Dec. 2, he suggested that climate accountability and justice calls for legal action. “If, as a consequence of all of our voluntary efforts, we are unable to protect that 1.5-degree threshold, if there’s going to be an overshoot, then perhaps the future discussion will be around legal action to hold large polluters accountable,” he said Climate litigation is certainly not the only answer or avenue for accountability, and it does come with significant challenges and limitations. “There are many reasons why litigation shouldn’t be the place to address climate change,” Jennifer Rushlow, a dean and environmental law professor and faculty director of the Environmental Law Center at Vermont Law School, told me via phone. “But it feels like none of the other methods that are available to us are working, and litigation is the only strictly enforceable way of compelling action, holding polluters accountable. And so while it’s slow and expensive, the outcome is a harder, more binding outcome.” “When politics breaks down,” CIEL’s Nikki Reisch said during Greenpeace’s December 6 COP28 press conference, “sometimes the law can break through.” “There’s really no sign of this litigation stopping,” she added. “It’s clear the movement is growing and the ratchet of accountability is coming.” Piece originally published by DeSmog “This is a historic moment,” Rob Bonta, California’s attorney general, told reporters on Sunday, as he stood alongside Gov. Gavin Newsom on the opening day of Climate Week NYC. The pair of California leaders were there to discuss the lawsuit the state had recently filed against Big Oil on behalf of the people of California to hold fossil fuel companies accountable for the effects of climate change. While it is not the first to seek accountability from the fossil fuel industry for its role in fueling the climate crisis, California’s lawsuit stands out in several ways: The state has a reputation for leading on climate policy; it is on the frontlines of climate change; it is a producer of oil and gas; and it is, to date, the most politically and economically powerful state to sue Big Oil. More than three dozen states and cities are suing oil, gas, and coal companies over their role in causing climate change. But California is the first fossil-fuel-producing state to do so. That sends a clear political message that the industry “is less powerful and trusted than before,” Nick Caleb, a climate and energy attorney with Breach Collective, told DeSmog. It may signal that fossil fuel companies do not have much of a future powering the state’s economy, Caleb said. California is facing major economic and humanitarian costs from the climate emergency. The state, with a population of nearly 40 million people, has racked up several billions of dollars in climate-related damages on top of the tragic costs to human lives. Some insurance companies are backing away from the state due to the outsized risks. “It’s incalculable in terms of the dollars, the lives lost, the funerals, and dead bodies in Paradise, California,” Newsom said on Sunday. In 2018, the Camp Fire decimated the northern California community and killed at least 85 people. “We all know how California has suffered from climate impacts,” Christiana Figueres, one of the key architects of the Paris Agreement, told journalists at a Covering Climate Now conference at Columbia Journalism School in New York City on Thursday. She called California’s lawsuit “a major, major upgrade … in the liabilities and in the reach that climate litigation can have.” The lawsuit names five companies — ExxonMobil, Shell, Chevron, BP, ConocoPhillips — and one lobby group, the American Petroleum Institute. It asserts that the companies knew about the climate risks associated with burning fossil fuels and greenhouse gas emissions, yet underplayed them to the public, and it argues that the climate disasters and devastation California is experiencing could have been largely avoided or mitigated were it not for the lies and deceit of the fossil fuel industry. “California is in the throes of a climate crisis,” the case contends. The 135-page complaint, filed Friday in superior court in San Francisco, lays out the evidence of the alleged deception in great detail. Bonta called it the “most sweeping complaint thus far.” “You cannot read it without crawling out of your skin,” Newsom added at Sunday’s press briefing. Many of the details and revelations are known, but are worth recapping as they explain why major oil companies are facing similar lawsuits from so many states and municipalities. A Public Campaign of Deception First, as the complaint notes, “Defendants have known about the potential warming effects of GHG emissions since as early as the 1950s.” Nuclear physicist Edward Teller warned the oil industry at an API event in 1959 that global warming might melt the polar ice caps and submerge coastal cities. In the late 1960s, as the complaint details, the Stanford Research Institute issued reports that accurately predicted the atmospheric carbon dioxide (CO2) concentration in 2000. The reports, commissioned by API, further warned of the Antarctic ice cap melt, and explicitly connected CO2 rise to fossil fuel combustion. More warnings came from industry scientists in the 1970s, but these were not disseminated publicly. Instead, Exxon realized that legislation affecting its business could take shape and decided to closely monitor the science but not publicly acknowledge or act on it. “In 1979, API and its members, including the Fossil Fuel Defendants, convened a Task Force to monitor and share cutting-edge climate research among members of the oil industry,” the complaint explains. This close assessment of potential climate impacts and climate modeling continued into the 1980s. In 1988, an internal Shell report titled “The Greenhouse Effect” further pointed to fossil fuels as the cause of rising CO2 concentrations and warned of the devastating impacts on society. The very real prospect of legislation and international action to combat climate change in the late 1980s and early 1990s, prompted a U-turn within the industry. The industry shifted tactics “from general research and internal discussion on climate change to a public campaign aimed at deceiving consumers and the public, including the inhabitants of California,” the complaint states. In publications and advertorials, the industry directly contradicted what it had known for decades about the role of fossil fuels in increasing CO2 emissions and temperature rise. During this time the Global Climate Coalition actively worked to undermine the public’s understanding of climate science and even to manipulate the Intergovernmental Panel on Climate Change, the UN’s climate science body. Exxon and other oil majors also funded “fringe scientists” to peddle their views and funded dozens of think tanks and front groups to promote climate denial. The complaint calls out a few of these groups, including: the Heritage Foundation, Heartland Institute, Competitive Enterprise Institute, Frontiers of Freedom, and Committee for a Constructive Tomorrow. A Conspiracy to “Conceal and Misrepresent” The California lawsuit does not bring racketeering charges as some recent climate accountability lawsuits have. It does, however, refer to a conspiracy. According to the complaint, the defendants, through their trade associations and front groups like the Global Climate Coalition, “conspired to conceal and misrepresent the known dangers of burning fossil fuels.” While conspiracy is not charged, the lawsuit references it “for the purposes of establishing that California state court is the correct jurisdiction and venue for this case,” Caleb explained. “Although the Fossil Fuel Defendants were competitors in the marketplace, they combined and collaborated with each other and with API on this public campaign to misdirect and stifle public knowledge in order to increase sales and protect profits,” the complaint argues. The industry’s alleged deception delayed a transition to alternative and cleaner forms of energy and enabled a much greater buildup of greenhouse gas (GHG) emissions than otherwise would have occurred, the lawsuit argues, adding: “Defendants could have chosen a different path.” Ben Franta, head of the Climate Litigation Lab at Oxford University and one of the key researchers to uncover evidence of the industry’s early climate change awareness and subsequent efforts to deceive, told DeSmog: “The bottom line is that major fossil fuel companies knew decades ago that their own products, unless replaced with safe energy sources, would cause catastrophic damage in the 21st century. They concealed their knowledge and misled the public about the reality, seriousness, cause, and solutions to the problem in order to keep selling fossil fuels and increase industry profits.” API was instrumental to the execution of this plan. The trade association “played a key role in creating climate denialist organizations such as the Global Climate Coalition,” Franta said. In response, API called California’s lawsuit part of an “ongoing, coordinated campaign to wage meritless, politicized lawsuits” against the oil and gas industry. The Western States Petroleum Association, the main industry lobby for the western region including California, is not a named defendant in the complaint. Franta said API and WSPA have “both played key roles in deceiving the public about climate change and worsening climate damages,” but that “much more research to date has been conducted on API.” Nevertheless, “their contributions to climate change are significant and actionable under California law,” Caleb told DeSmog, adding that WSPA “deserves to be held accountable” for greenwashing and deceptive conduct. WSPA has been named as a defendant in a climate lawsuit filed in June by Multnomah County, Oregon, the first such case to do so. Industry’s Misleading Behavior Has “Not Stopped” The complaint says the companies’ “efforts to mislead the public about climate change have not stopped.” In recent years, the oil and gas industry has shifted to prolific greenwashing. It portrays its products as “cleaner” or “low carbon,” and claims the industry is driving climate solutions. “Just as tobacco companies promoted ‘low-tar’ and ‘light’ cigarettes … so too do Defendants peddle ‘low-carbon’ and ‘emissions-reducing’ fossil fuel products,” the complaint notes. Yet Big Oil is now retreating on its meager climate commitments and doubling down on oil and gas production, even after raking in record profits in 2022. For instance, in June, Shell announced it would not follow through on its earlier promise to gradually decrease oil production through 2030. “The fact that they’re still at it, rolling back ambition in real time … is shameful,” Newsom said on Sunday. “They need to be held accountable. They need to pay for the damage that they’ve caused. They knew, they knew for years,” Bonta added. In an emailed statement, a Shell spokesperson said the company’s “position on climate change has been a matter of public record for decades”, adding: “We do not believe the courtroom is the right venue to address climate change.” ExxonMobil, Chevron, BP, and ConocoPhillips did not immediately respond to requests for comment. Lawsuit Opens the “Floodgates” Newsom and Bonta made clear on Sunday that they’re hoping the state’s decision to sue Big Oil could therefore encourage other jurisdictions to do the same. California’s actions on climate have often broken new ground and inspired other states to follow suit — a phenomenon is called the “California effect.” For example, the state has set increasingly stringent vehicle tailpipe emissions standards, implemented the country’s first economy-wide cap-and-trade program, and has recently passed a first-in-the-nation law requiring large companies to publicly disclose their greenhouse gas emissions. Climate lawyers and activists called California’s move to sue Big Oil “historic” and “decisive.” “The California lawsuit is the most significant litigation against the industry that’s happened yet,” said Steven Donziger, an environmental and human rights attorney who successfully sued Chevron and faced retaliation for it. “All of these lawsuits together collectively can really force the phaseout of the industry. They’re important.” “California’s lawsuit provides major momentum in the race to protect a livable planet,” Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute, said in an emailed statement. “This case opens a new avenue for California to lead the nation in ending deadly fossil fuels.” Geoffrey Supran, associate professor of environmental science and policy and director of the Climate Accountability Lab at University of Miami, noted that California “is a bellwether for U.S. environmental action,” and that momentum to hold Big Oil accountable through litigation has been mounting for several years. “Now that the fifth largest economy in the world has waded in, the floodgates are truly open,” he said. As a state that still produces oil and gas, however, some say California is still not moving quickly enough to sever ties with the industry it is now suing. Mark Jacobson, professor of civil and environmental engineering at Stanford University, said that California “can do a lot more, faster,” noting the state continues to permit fossil gas usage in buildings, has not banned oil and gas drilling, and plans to phase out new gasoline-powered vehicles only by 2035, which is “five years after we need to transition 80 percent of the world away from fossil fuels.” Campaign Demands “Polluters Pay” A new activist campaign called “Make Polluters Pay,” which launched Monday in New York City, with a Times Square billboard and a six-figure digital ad buy and online petition, is supporting California’s call for more climate accountability lawsuits. “Make Polluters Pay will be the first big public-facing campaign to build support for these climate lawsuits and the broader effort to hold the fossil fuel industry accountable for the damage they are doing to our health, climate and communities,” Jamie Henn, founder of Fossil Free Media, told DeSmog.
“I think California’s lawsuit is going to turn these climate liability cases into a serious movement that not only excites environmental lawyers, but the public writ large,” he added. “A few hundred million Americans experienced the brutal heat waves and other climate disasters this summer and they’re looking for someone to hold responsible. And when it comes to climate destruction, the answer is clear: it’s Big Oil.” Article originally published by Drilled
Sixteen young Montanans have accomplished something unprecedented in U.S. history – holding their government accountable for exacerbating the climate crisis and thereby violating their fundamental constitutional rights. In a ruling released August 14, 2023, district court judge Kathy Seeley agreed with the young people: they have a right granted by the state's constitution to a healthy environment, and that right is being violated by the state government's refusal to consider climate impacts in its permitting decisions. There’s a lot to unpack here, but first it’s important to point out that courts outside the US have already ruled that governments are harming their citizens or violating human rights in their woefully inadequate responses to what climate scientists have warned is a full-scale climate emergency. From Colombia to Germany to the Netherlands, citizens and young people have taken their governments to court and won. But so far no climate accountability lawsuit in the US has seen similar success, including municipal and state lawsuits against fossil fuel majors as well as youth cases against governments. No case had yet even made it to trial, with the exception of New York’s securities fraud case against Exxon in 2018 (which Exxon ultimately won). That is, until this June when the 16 youth plaintiffs – ranging in age from 5 to 22 - in the case Held v. State of Montana put their government on trial. It was the first-ever constitutional climate trial in this country, and first in a youth-led climate lawsuit. Similar cases, including one at the federal level, all spearheaded by the nonprofit law firm Our Children’s Trust, had for the most part been dismissed. The cases all argue that the government’s authorization of a fossil fuel-based energy system contributes to dangerous climate change and particularly harms our kids, depriving them of fundamental constitutional rights like the rights to life, liberty, and dignity. But Montana’s constitution expressly guarantees the right to a clean and healthful environment, and it extends this and other inalienable rights to the state’s youth. The Held case therefore charged Montana’s government with violating the constitutional right to a clean and healthful environment (among other fundamental rights), arguing that the state’s pro-fossil fuel permitting policies damage the climate and the environment. The trial in the state capital of Helena started June 12 and ran for six and a half days. It attracted national and even international media attention. I was there in person the entire time covering it, observing from the jury box where members of the media were assembled. This trial was history in the making, as it was the first time that young people gave live testimony of their lived experiences with climate impacts, supported by detailed testimony from scientific experts explaining these impacts and the government’s role in worsening them. This testimony from youth plaintiffs and their expert witnesses took up the first week of trial. By contrast, the state of Montana took just one day to deliver its defense. The state called only three witnesses - two high-level officials from one of the defendant agencies, and a free-market economist whose cross-examination lasted longer than his direct testimony. That was it. No scientific experts and no presentation of climate science. In terms of the weight of evidence presented, the plaintiffs’ side appeared much more substantial. So then, what was the state’s defense? Examining the defendants’ claims and characterizations reveals just how weak it was and provides some basis for understanding how the young plaintiffs managed to win. “It’s a MEPA trial” The state’s defense ultimately seemed to center around a strategy of characterizing the case as narrowly as possible. Rather than engaging substantively on the climate issue at the heart of the case, state lawyers argued the trial was solely about a “boring” procedural statute – the Montana Environmental Policy Act (MEPA). This is the state equivalent of the National Environmental Policy Act (NEPA) that requires the government to conduct environmental reviews of proposed major actions or projects; it’s a bedrock environmental law that allows for public participation and transparency. The Montana version of this law – MEPA – used to allow agencies to evaluate climate impacts in these reviews, like the federal law does. But in 2011 the state legislature amended the statute to prohibit consideration of impacts beyond state borders. This implicitly barred assessments of climate pollution, which is inherently transboundary in nature. The youth lawsuit against the state, filed in 2020, challenged this MEPA “climate change exception” provision, along with provisions in the state’s energy policy that specifically promote fossil fuels. Then the 2023 Montana legislature, in attempts to quash the lawsuit before trial, eliminated the energy policy statute and again amended MEPA to replace the 2011 version with one that explicitly bans consideration of greenhouse gas emissions and climate change in environmental reviews, both within and beyond state borders. It is technically true then, that at the time of the trial, the legal challenge before the court was specifically the constitutionality of the MEPA ‘climate change exception’ provision, or what the judge called the ‘MEPA limitation.’ Just weeks before trial, the judge dismissed the other legal claim challenging the state’s pro-fossil fuel energy policy. But to look at the MEPA provision in a vacuum is to ignore critical context of the state’s preferential treatment of fossil fuel development. As one expert witness for the youth plaintiffs testified, Montana has never denied a permit to a fossil fuel project. State defendants argued repeatedly that MEPA is strictly procedural, and therefore has no bearing on permitting decisions. “It’s a MEPA trial and that’s not where we permit,” Chris Dorrington, director of the Montana Department of Environmental Quality (one of the defendant agencies) said from the witness stand. But in a pre-trial order rejecting the state’s request for what’s called summary judgment – a ruling issued without a trial – Judge Kathy Seeley quoted the Montana Supreme Court: “[p]rocedural, of course, does not mean unimportant.” The state’s characterization of the court proceeding as a “MEPA trial” and not a climate trial ignored the fact that the MEPA provision at issue was squarely about climate change. By prohibiting the consideration of greenhouse gas emissions and climate change in environmental reviews, Seeley ruled that provision is at odds with Montana’s constitutional right to a clean and healthful environment. At issue here is not how MEPA works, but how the state’s dismissive treatment of climate change endangers the youth plaintiffs and degrades Montana’s environment. “Not a scientist” During the trial, the state apparently decided it would be best to ignore climate science altogether and to claim that Montana’s emissions simply do not matter on a global scale—a faulty strategy given that Keeley's ruling includes not one but two sections on climate science. It is quite remarkable (and telling) that in a climate change trial, the state defendants failed to present any climate science during its defense. In an unexpected twist, they even decided at the last minute not to call their one scientific ‘expert’ – climate contrarian Judith Curry – to testify. “We were expecting that this trial would involve a battle of the scientific experts,” Prof. Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia Law School, told me. “But after they heard the testimony of the plaintiffs’ scientific experts, the State’s lawyers decided not to fire a single shot in this battle, and they withdrew the one scientist they had been planning to call. They apparently decided that this would be a losing fight.” The state attorney's office did not respond to a request for comment. The exchanges and testimony inside the courtroom revealed that state officials either have little understanding of climate change and climate science, or are deliberately choosing to ignore it in favor of other interests. On day 2 of the trial, when Assistant Attorney General Thane Johnson cross-examined plaintiffs’ expert witness Cathy Whitlock, a climate scientist and professor emeritus at Montana State, he asked her to explain the climate modeling scenarios used in the Intergovernmental Panel on Climate Change (IPCC) reports – the two types of scenarios are known as Representative Concentration Pathways (RCPs) and Shared Socioeconomic Pathways (SSPs). But during this line of questioning, he repeatedly misstated the acronyms. Johnson called the former scenario “RPC”, and then he referred to the “ICP” (meaning the IPCC), and he again got this acronym wrong in calling it the ICPP. At one point he said: “I’m going to write that down, there’s a lot of Cs and Ps involved.” The following week, when youth plaintiffs’ counsel Melissa Hornbein of the Western Environmental Law Center cross-examined Sonja Nowakowski, head of the Air, Energy, and Mining Division at Montana DEQ, the agency witness refused to answer a pair of questions with a very obvious answer. Hornbein asked whether greenhouse gas emissions harm the ‘environmental life support system’ and whether they contribute to depletion or degradation of natural resources. Nowakowski responded with the classic deflection line: “I’m not a scientist.” That line has been a go-to among climate denying Republican politicians. But in the state’s closing argument, Michael Russell, another assistant attorney general, claimed it would be inaccurate to place Montana’s Republican-controlled state government in the denial camp. “Plaintiffs have essentially characterized the state as so-called climate deniers,” Russell said, arguing that state defendants do acknowledge the scientific consensus on climate change and saying they agree that activities the state authorizes do result in greenhouse gas emissions. And yet, the state recently enacted a law requiring agencies to ignore these emissions and their climate impacts during MEPA environmental reviews. In other words, state agencies are by law mandated to deny requests to evaluate a proposed project’s climate pollution. How is that anything other than climate denial? “The state’s climate deniers want to make sure that their denial is embodied in a statute, and that the science doesn’t have any role to play in an environmental assessment,” said Phil Gregory, an attorney for the youth plaintiffs. Ultimately, the court agreed with his argument. In her ruling, Judge Seeley found that this MEPA's limitation on considering greenhouse gas emissions violates the Montana Constitution. To the extent the state did address climate change during the trial, it argued that Montana’s greenhouse gas emissions don’t matter. “Montana’s emissions are simply too miniscule to make any difference,” Russell contended during his opening statement. But as climate policy analyst Peter Erickson explained during his expert testimony on the plaintiffs’ side, Montana’s total annual CO2 emissions – 166 million tons (based on 2019 data) – are on par with annual emissions of entire countries like the Netherlands and Pakistan. “To call [Montana’s] emissions miniscule is then to call the emissions of over 100 countries of the world miniscule,” Erickson said. “Montana’s emissions matter”, he emphasized. That’s especially true given the state authorizes quite a lot of fossil fuel extraction, especially coal. Erickson calculated that fossil fuel extraction in Montana results in approximately 70 million tons of CO2 emissions annually, roughly equivalent to the annual emissions from more than 14 million passenger vehicles on the road. Moreover, coal not yet extracted represents an enormous amount of CO2. Montana is said to have the largest recoverable coal reserves in the entire country. Given that context, it seems a bit absurd for the state to claim that its emissions are “too minuscule” to matter. As Gerrard said: “The state's principal defense was that Montana plays too small a role in contributing to climate change for them to be required to do anything about it. This is despite the fact that Montana is the state with the largest coal reserves, including part of the Powder River Basin, which has been called the Saudi Arabia of coal.” Furthermore, it is the scientific consensus that every ton of CO2 or GHG emitted adds to the climate problem. This is explicitly stated by the IPCC in its Sixth Assessment Report. And in a court of law, such evidence and facts matter. An “airing of political grievances” In its closing argument, the state also tried to claim that this dispute ought to be a fight solely reserved for the legislature. In other words, courts have no business acting as a check on the legislative and executive branches, since the state’s power is derived from its people and people can directly choose their political representatives through elections. That line of reasoning is just plain wrong. State legislatures do not have ultimate power, as the US Supreme Court recently confirmed in an important case on election authority. Contrary to Russell’s assertion that the plaintiffs’ case amounts to an “airing of political grievances that properly belongs in the legislature not a court of law,” the lawsuit is grounded in claims of alleged constitutional violations. Courts have a duty to assess the constitutionality of the political branches’ conduct and policies. That’s how a constitutional democracy works. Moreover, many of the Montana plaintiffs are still too young to vote. In his closing statement, Russell suggested the plaintiffs could “legislate by ballot initiative and lobby their legislators” and continue “advocating their position in public to generate the political will necessary to enact their preferred policies into law.” The young Montanans are of course already engaging in climate activism, and yet, as one plaintiff said, state government officials “continue to promote fossil fuels.” Several other plaintiffs testified that they believe the state is “prioritizing profits over people.” And people are allowed to go to court when the state infringes on their fundamental rights. As plaintiffs’ counsel Nate Bellinger, senior staff attorney at Our Children’s Trust, stated in his closing: “It’s worth remembering other times in our nation’s history when the political process didn’t work to protect people’s basic human rights. Segregation, women’s rights, equal and adequate public schooling, marriage—time and time again, the political will of powerful majorities was struck down by courts, based on the compelling evidence before them, courageously correcting the injustices thrust on the people. Today, the injustice squarely before this Court is the proven harms of these young people wrought by climate change caused by a fossil fuel-based energy system imposed and perpetuated through the law.” What happens next? The state will almost certainly appeal, and the case could end up before the Montana Supreme Court. So while the youth plaintiffs' win is historic, there is a chance the judgement will be overruled. Regardless of the outcome, today the Montana plaintiffs have won. They succeeded in forcing their government to be put on trial. That is a huge deal because it allowed for science to form the basis of the evidence, and demonstrated that government policies are often at odds with science – especially when it comes to climate. The Montana plaintiffs also succeeded in getting their day, or in this case their week, in court to testify and let their voices be heard. And they succeeded in securing a historic ruling in their favor. It may inspire further youth climate activism including more youth-led climate litigation. 18-year-old plaintiff Lander Busse said he hopes the case will be “starting a trickle down of other litigation and activism nationally,” adding: “It feels like the beginning, really.” Piece originally published in DeSmog
It was another busy year in the courts for climate-related cases. From challenges to fossil fuel and petrochemical expansion to climate lawsuits against Big Oil and national governments, there were notable victories for climate action and accountability in 2022. There were also some setbacks, for instance, the U.S. Supreme Court’s limitation of the U.S. EPA’s authority to regulate greenhouse gas emissions. Here are some of the highlights. U.S. Climate Liability Lawsuits Against Fossil Fuel Companies Make Key Advances More than 20 U.S. cities, counties, and states have filed lawsuits against major fossil fuel producers aiming to hold them liable for the mounting costs of climate impacts and for allegedly engaging in deceptive campaigns to deny the risks of their products and promote misleading greenwashing advertising. The litigation has been tied up in procedural battles and no case has yet made it to trial. But several cases are nearing that stage, with breakthrough decisions this year setting them firmly on the path to trial. Climate liability lawsuits filed by Honolulu and Massachusetts are entering the discovery phase A pair of climate cases from opposite sides of the country appear to be the closest yet to holding fossil fuel companies accountable in court. Lawsuits filed by Honolulu, Hawaii, and by the Commonwealth of Massachusetts have both overcome initial procedural hurdles and are advancing in state courts, despite dogged attempts by lawyers for the fossil fuel firms to punt the cases into federal courts where they hoped to find an easier path to dismissal. And the two cases have each taken a big leap forward in state courts with judges denying fossil fuel defendants’ requests to dismiss the litigation. Earlier this year, a Hawaii state court judge issued several rulings denying oil companies’ motions to dismiss Honolulu’s case, originally filed in March 2020. In a press release, the Honolulu City Council explained, “with these favorable rulings [Honolulu’s] case is now set to become the first in the country to move into a trial phase and begin the all-important process of discovery, where the oil companies must begin opening up files to show what they knew.” The Massachusetts case is also heading into the pre-trial phase of discovery, during which internal corporate records will be revealed. The case, brought by Attorney General (now Governor-elect) Maura Healey in October 2019, targets ExxonMobil with claims of misleading consumers and investors about the climate risks of its products and the climate risks facing the company’s business. In June 2021, a Massachusetts trial court denied Exxon’s attempt to dismiss the litigation, which claimed the lawsuit was harassing the company and violating its free speech rights. And this May, the state’s highest court upheld that decision, clearing the way for a trial. “We look forward to proceeding with our case and having our day in court to show how Exxon is breaking the law and to put an end to the deception once and for all,” Attorney General Healey responded in a statement. Discovery in the case is currently underway. Federal courts continue rejecting fossil fuel companies’ bids to keep climate cases out of state courts Other U.S. cases targeting fossil fuel majors scored important procedural wins this year, with defendants repeatedly losing their bids to force the litigation into federal courts where oil companies presumably see an easier path to dismissal. Cases filed by Boulder, Colorado, Baltimore, Maryland, a handful of California coastal communities, and the states of Rhode Island and Delaware all received rulings this year from federal appeals courts rejecting fossil fuel defendants’ theories for why the cases should be in federal rather than state courts. For all but one set of cases, the appeals courts were ruling for the second time that, yes, the litigation really should proceed in state courts. The targeted fossil fuel companies are challenging these rulings, with several petitions currently pending before the U.S. Supreme Court. (The court has not yet decided whether to accept or reject the petitions.) Also this year, several federal district court judges decided to send four sets of cases back to state courts, most recently in last month’s ruling in the District of Columbia’s case against BP, Chevron, ExxonMobil, and Shell. Fossil fuel companies are fighting relentlessly to keep these climate liability cases out of state courts. As Richard Wiles, president of the Center for Climate Integrity — which advocates for holding climate polluters accountable through the courts — wrote recently in Bloomberg Law, “Big Oil defendants are terrified that these cases will reach trial in state courts, where juries would be shown the long trail of evidence of their climate deception, and the companies would face — in their own words from U.S. Supreme Court petitions — ‘massive monetary liability.’” With at least two cases already in the pre-trial discovery phase, it seems Big Oil will have to face its fear of standing trial. “This has been a banner year for climate accountability lawsuits. More states and municipalities are taking Big Oil to court than ever before, Puerto Rico communities filed the first-ever RICO suit against fossil fuel companies, and other cases are marching toward historic trials that would present the evidence of the companies’ deception to juries, which is the industry’s worst nightmare,” Wiles told DeSmog by email, calling out Puerto Rico’s groundbreaking racketeering case. “These polluters will keep trying to escape accountability, but thankfully judges across the country have seen through their misleading arguments and unanimously ruled in favor of plaintiff communities. There’s no doubt 2023 will be another decisive year in legal efforts to hold these companies accountable.” U.S. Court Strikes Down Gulf Oil Leases on Climate Grounds A significant — but for now, temporary — legal win against fossil fuel expansion came in late January. In November 2021, the U.S. Department of the Interior announced it would offer oil and gas companies the chance to lease 80 million acres of federal waters in the Gulf of Mexico, but environmental groups challenged the decision. On January 27, Judge Rudolph Contreras of the U.S. District Court for the District of Columbia invalidated the lease sale — the largest ever for offshore oil and gas -- saying the government did not adequately consider the potential climate impacts. The decision cited the bedrock environmental law, the National Environmental Policy Act (NEPA), which requires federal agencies to undertake comprehensive studies to consider the environmental impacts of major federal actions. “The Biden administration’s failure to adequately evaluate the climate impacts of this massive lease sale wasn’t just out of step with their stated commitment to climate action, it was also illegal,” Sierra Club Senior Attorney Devorah Ancel said in a press statement responding to the court decision. Earthjustice attorney Steve Mashuda emphasized that NEPA’s value extends beyond documenting potential environmental impacts. “NEPA provides not only the vehicle for considering the climate effects of projects, it’s also the most effective vehicle we have to lift up the public’s voice in decisions that will shape our future,” he said. Although the Biden administration declined to appeal Judge Contreras’ ruling, the Interior Department did reinstate the lease sale per a requirement included in the Inflation Reduction Act, which Congress passed in August. “We filed a brief with the DC Circuit Court of Appeals just before Thanksgiving emphasizing that the directive to issue the leases did not absolve Interior from its NEPA violations, which is what both the oil industry and Interior are arguing,” Mashuda explained via email. “Rather, nothing about the lease sale, which was held in violation of NEPA, has changed, and the IRA makes no mention that NEPA be disregarded at any point.” Huge Win in Court Against Formosa Plastics’ Giant Petrochemical Complex In September a Louisiana judge delivered a big win for community and environmental groups fighting a proposed massive petrochemical complex by Formosa Plastics. The polluting project, announced in 2018, would be sited in St. James Parish, Louisiana — part of a corridor predominantly populated by people of color and known as “Cancer Alley” due to the heavily polluted air, which stems from the area’s large concentration of refinery and chemical facilities. The September ruling by Judge Trudy White overturned the project’s air permits issued by the Louisiana Department of Environmental Quality, effectively halting the $9.4 billion chemicals facility. “Stopping Formosa Plastics has been a fight for our lives, and today David has toppled Goliath,” RISE St. James founder and president Sharon Lavigne said in a statement following the ruling. The court’s decision to nix the air permits was clearly a victory for public health and environmental justice — and for the climate. Formosa’s proposed petrochemical complex would have emitted an estimated 13.6 million tons of greenhouse gases per year, equivalent to the annual emissions of 3.5 coal plants. This enormous climate footprint, from just a single project, would raise Louisiana’s total energy-related emissions by 6.5 percent over 2016 levels. In her ruling, the judge emphasized that the state’s environmental agency “must take special care to consider the impact of climate-driven disasters fueled by greenhouse gases on environmental justice communities and their ability to recover.” The Louisiana Department of Environmental Quality and Formosa are appealing the decision. Successful Climate Litigation Against the Czech Government Outside the United States, courts made some key rulings this year favorable to climate protection. In recent years, European courts have made landmark decisions in climate lawsuits challenging national governments’ insufficient climate action or policies. Courts in the Netherlands, Ireland, France, Belgium, and Germany have all ruled that governments are failing to take adequate measures to reduce emissions or that current climate policies must be revised to comply with states’ legal obligations. This year, the Czech Republic joined the list of European countries where climate litigation targeting governments’ climate responses has been successful. In June, the Prague Municipal Court ruled that the state’s actions to reduce emissions were insufficient and that Czech government ministries must urgently implement stronger measures in line with the goal of slashing greenhouse gas emissions at least 55 percent by 2030. That target is the European Union’s current commitment under the Paris Agreement and is cemented into EU law. The court’s decision came in a lawsuit filed in April 2021 by an association of over 260 Czech citizens. Although government ministries are appealing the ruling, it represents a major development in holding the Czech government accountable for its responsibility — and legal obligations — to take all necessary actions to meet its climate commitments. “We are obviously pleased with the court’s verdict. It is a victory for the climate movement in the country and around the world,” Martin Abel, a spokesperson for the association that brought the litigation, said in a statement. Landmark Decisions in Australia on Climate Change and Human Rights Another important climate win came just last month out of Australia when a Queensland court ruled in favor of a youth and Indigenous–led legal challenge to a massive proposed coal mine. The “landmark” ruling marked the first time that human rights were successfully invoked in a climate case targeting a coal mine. The lawsuit, brought by a group called Youth Verdict, sought to stop Waratah Coal’s Galilee coal project proposed for central Queensland, arguing the coal mine would cause extensive climate and environmental harm and infringe on human rights. The coal mine would produce up to 44 million tons of coal per year and contribute 1.74 billion tons of carbon pollution. During a trial earlier this year, the Land Court of Queensland actually traveled to the low-lying Torres Strait Islands, located off the northern tip of Queensland, for an unprecedented hearing. There, the court heard firsthand how climate change and sea level rise are impacting the islands’ First Nations inhabitants and how the proposed mine would worsen those effects. In late November, the court determined the Galilee coal mine’s impacts would limit certain fundamental human rights, including the right to life, and recommended the project be scrapped. The final decision on whether to approve the mine is in the hands of Queensland government officials. “This case has made legal history,” Justine Bell-James, an associate professor at TC Beirne School of Law at the University of Queensland, wrote in The Conversation. “It is the first time a Queensland court has recommended refusal of a coal mine on climate change grounds, and the first case linking human rights and climate change in Australia.” In a similarly groundbreaking decision on climate change and human rights, the United Nations Human Rights Committee declared in September that Australia’s insufficient climate response and failure to protect the Torres Strait Islanders, who face potential climate displacement, violate the Islanders’ human rights. This determination is the first from an international human rights tribunal that holds a government accountable for failing to protect its citizens from climate impacts. The Committee has requested that Australia provide adequate compensation to the islanders, engage in meaningful consultations with them and implement measures to ensure their safe, continued existence on their islands. New Climate Cases Stack Up The increasing number of climate-related lawsuits emerging around the world shows no signs of slowing down, as the climate emergency itself accelerates and intensifies. This year saw a host of new climate cases filed against governments and corporations. In the United States, young people filed several new lawsuits against their state governments, including in Virginia, Hawaii, and Utah. And recently both New Jersey and a group of municipalities in Puerto Rico announced they were filing new climate liability suits against fossil fuel companies. Outside the United States, more climate cases were announced against national governments in countries such as the UK, Russia, Sweden, and Finland. In addition, new filings this year took aim against an airline in the Netherlands, the oil company TotalEnergies in France, and a cement manufacturer in Switzerland. “Over the past year we’ve seen communities and individuals continuing to turn to the courts to advance their agenda on climate action,” Joana Setzer, assistant professor in climate governance and climate litigation at the Grantham Research Institute on Climate Change and the Environment, said via email. “Cases against corporations are definitely one area where we’ve seen new, creative litigation strategies being used to good advantage.” While it’s too soon to predict how those cases will play out, Setzer says she sees signs that many corporate and financial players are starting to consider this litigation threat in their decision-making. If this last year is any indication, expect even more climate litigation and major developments in 2023 — and more coverage from DeSmog. Piece originally published in Common Dreams
From Australia to the EU to the U.S., governments will be on trial as courts focus on climate. Courts are becoming a critically important arena for addressing issues of justice and accountability pertaining to the climate emergency. Increasingly citizens and communities are turning to the courts in efforts to hold governments and corporations accountable for their roles in the escalating planetary crisis. This trend is so significant that the Intergovernmental Panel on Climate Change (IPCC) even referenced it several times in its latest report on climate mitigation published last spring. Climate will be on court dockets in a big way in 2023 with several high-profile cases scheduled for trials and hearings. Each of these cases invokes constitutional or human rights and involve groups that are disproportionately impacted by climate change, such as youth and indigenous peoples, putting their governments on trial. From Australia to the European Union to here in the United States, courts will be holding groundbreaking hearings in the coming year on what is perhaps the biggest issue facing humankind. The US for example will see its first-ever constitutional climate trial in June. That is when the state of Montana will be facing trial in a landmark lawsuit brought by sixteen young people from across the state, alleging that their government is actively harming them--and violating their fundamental rights under the state constitution - through promotion of a fossil fuel-based energy policy that contributes to dangerous climate change. The young Montanans seek a court declaration that the state's policies to prop up fossil fuels are infringing upon their constitutional rights, including the right to a clean and healthy environment. Such a verdict would be game-changing for climate and energy policy in and beyond Montana. The trial, scheduled for June 12--23, 2023 in the state capital of Helena, will mark the first time that government defendants at the state or federal level will have to try to explain how their continued support for a fossil fuel-based energy system squares with climate science that clearly indicates fossil fuels must be rapidly phased out to limit the most catastrophic climate impacts. It will also be the first time that constitutional arguments will be made in a climate change trial in the U.S., and the first trial in the country's history in a climate case brought by young people--and the stakes could not be higher. In Europe, a trio of climate cases are slated to come before an international human rights court in what could be precedent-setting litigation on the relationship between climate change and human rights. Hearings are set to commence on March 29, 2023 in the Grand Chamber of the European Court of Human Rights in three climate lawsuits targeting European states for insufficient climate responses, alleging violations of human rights under a treaty called the European Convention on Human Rights. One case is brought by a group of Portuguese youth, another by a group of Swiss senior women, and the third by a former mayor of a coastal community in northern France. The 17 judges of the court's Grand Chamber preside over only a select number of cases each year raising the most serious questions of human rights law interpretation, so the fact that this body has taken up several climate cases is undoubtedly significant. The upcoming hearings will be the first time that the European Court of Human Rights examines climate change in its official proceedings, opening the door to the path of potentially holding national governments accountable for their inadequate climate action under European human rights law. Also coming up in 2023 will be trial proceedings in a climate case brought by a pair of First Nations' inhabitants of the Torres Strait Islands, located between Queensland and Papua New Guinea, against the Australian government for failing to protect their island communities and culture from climate-related harms. The Torres Strait Islanders are indigenous Australians who risk losing their homeland as sea levels rise. The case against the government is brought as a class action on their behalf, arguing that Australia has a legal duty to safeguard them from climate harms. A ruling in their favor could compel Australia to take much stronger climate action. The first phase of the case's trial is scheduled for June 2023, with the second phase expected later in the year. In an order issued in July of this year the judge noted the importance and timeliness of this case. "There is no denying the unremitting march of the sea onto the islands of the Torres Strait," she wrote, adding, "the reality facing Torres Strait Islanders gives this proceeding some considerable urgency." Indeed, the climate emergency is one of urgency, and litigation tends to move rather slowly. Courts are just one avenue to pursue climate justice. But with climate litigation on the rise worldwide, this judicial avenue is one that is becoming ever more important. And the coming year is shaping up to be a momentous one for climate in the courts. Article originally published by Center for International Environmental Law (CIEL)
Climate litigation has taken on even greater importance after the failure of COP26 to deliver the action and resources required to accelerate the energy transition and remedy mounting climate harms. As progress in international negotiating rooms stalls, litigation in national and regional courtrooms plays an ever more critical role in efforts to compel urgently needed climate action. Those cases focus on holding governments and, increasingly, corporations accountable for their climate inaction and ongoing contributions to global warming, which gravely threaten human rights. Companies in high-emitting sectors are facing mounting public scrutiny and potential legal liability over the incompatibility of their operations with a safe climate future. From expanding oil and gas production to greenwashing carbon-intensive products, the conduct of the fossil fuel industry and other polluting sectors is subject to a rising number of legal challenges. More and more, the focus of those challenges is shifting from companies’ historical contribution to climate change and past misrepresentations of climate science to their current role in prolonging the fossil fuel era and their present claims about the climate impacts of their products. Using Courts to Compel Corporate Climate Action Lawsuits have already begun to hold corporations accountable for failing to rapidly bring their emissions in line with a 1.5°C pathway. The most prominent recent example is the groundbreaking ruling in the Netherlands, Milieudefensie et al v Royal Dutch Shell. The Hague District Court’s May 2021 decision marked the first time a company has been held legally accountable for its contribution to climate change. The court ordered Shell to reduce its emissions out of a duty to respect human rights and conform to the temperature goals set in the Paris Agreement. The ruling also set a precedent in holding Shell responsible for emissions across its supply chain, including those from its own operations and emissions from the use of its products (often referred to as Scope 1, 2, and 3 emissions), the latter of which constitute the lion’s share of its carbon footprint. Shell must reduce its overall global emissions 45% below 2019 levels by 2030. That near-term target reflects the outsized importance of reductions achieved this decade compared to those promised by mid-century to avoid climate catastrophe. Practically speaking, the 2030 deadline also means that Shell cannot rely on engineered carbon dioxide removal techniques or purported negative emissions technologies that are not currently — and may never be — viable or safe at scale. A similar lawsuit is currently pending in France against the oil major Total (now renamed TotalEnergies). Environmental NGOs and local municipalities are seeking to hold the French fossil fuel giant accountable for failing to adequately report climate risks from its business operations and products and align its activities with the goals of the Paris Agreement. New corporate climate accountability litigation has also arisen in Germany. Following Milieudefensie v. Shell and a successful constitutional climate case against the German government, environmental groups in Germany have commenced legal proceedings against German automakers (BMW, Mercedes-Benz, and Volkswagen) for failing to align their business operations with the Paris climate goals and uphold the rights of future generations. Through their parallel lawsuits, Deutsche Umwelthilfe (DUH) and Greenpeace Germany aim to compel the automakers to end the sale of fossil fuel-powered cars by 2030. Additionally, Greenpeace is demanding that Volkswagen reduce its emissions by 65% by 2030. These cases signal that the growing trend toward challenging corporate climate impacts extends beyond the fossil fuel industry. The Mounting Case for a Fossil-Free Future The case for such challenges is gaining strength, as the scientific and political consensus converges around the need to limit warming to 1.5°C. Throughout 2021, reports and statements issued by scientific, economic, and human rights authorities underscore that plans to continue producing the fossil fuels heating the planet are at odds with the Paris Agreement objectives and human rights obligations. In 2018, the Intergovernmental Panel on Climate Change (IPCC) warned that exceeding warming of 1.5ºC will result in dramatically greater climate damage and even more significant threats to human health, human rights, human lives, and biodiversity. The August 2021 Intergovernmental Panel on Climate Change (IPCC) report examines the physical science basis for climate change and sounds the alarm, finding that this temperature threshold will likely be reached in the early 2030s, underscoring the need for urgent emissions reductions this decade. For fossil fuels, which are responsible for more than two-thirds of global greenhouse gas emissions, the implications of these analyses are clear. In an official statement, the UN Secretary-General António Guterres called the IPCC’s latest report a “code red for humanity” that must “sound a death knell for coal and fossil fuels, before they destroy our planet.” Even the notoriously industry-friendly International Energy Agency recognized that new investments in oil, gas, and coal projects must end immediately to keep warming to no more than 1.5ºC. Yet, government-backed plans for fossil fuel production through 2030 amount to more than double the level that would be consistent with limiting warming to 1.5ºC – a discrepancy that researchers call the “production gap.” We cannot avoid catastrophic climate change without closing this gap. And the gap will remain until fossil fuels go. Countries are beginning to recognize the need to end fossil fuel production and manage the industry’s decline. Led by Denmark and Costa Rica, a coalition of countries and one subnational government launched the Beyond Oil and Gas Alliance at COP26, pledging to end new oil and gas exploration and phase out production. Momentum is also building behind the call for a Fossil Fuel Non-Proliferation Treaty, a global agreement to halt fossil fuel expansion and wind down existing production. And mounting public protests against new oil developments are having an effect: Less than a month after climate campaigners at COP26 denounced plans in the UK to develop the Cambo offshore oilfield in the North Sea, Shell withdrew from the project. Absent more such decisions, sustained production cuts, and plans to drastically rein in emissions, oil and gas companies— and the governments that authorize and sanction their plans — are knowingly jeopardizing human rights on an unprecedented scale. As the UN High Commissioner for Human Rights Michelle Bachelet stated in remarks ahead of COP26, climate action “is a human rights obligation and a matter of survival.” Continued Climate Deception: The Myth of Climate-Safe Oil and Gas The problem is, fossil fuel companies are not simply advancing business-as-usual production plans that cannot be squared with a safe climate. They are cloaking those plans in “net-zero” pledges and purported “lower carbon” pathways that mask fossil fuels’ climate impacts and prolong their hold on economies. Climate deception is not just a thing of the past. Oil and gas companies continue to mislead the public by suggesting they can keep producing fossil fuels and avoid climate catastrophe. No longer able to deny that their products drive climate change, oil and gas companies have pivoted to portraying their production of fossil fuels as consistent with action to avoid climate catastrophe. Through vague vows to reach net-zero emissions and slick statements touting technologies like carbon capture, petroleum producers are distracting from the damage they are unleashing by continuing to sell their products. Their greenwashing gambit both deflects from their business-as-usual operations and misrepresents the impacts of purported “lower carbon” technologies. The fossil fuel industry frequently portrays carbon capture and storage (CCS) and hydrogen as climate solutions without disclosing the extent to which they perpetuate fossil fuel production and use and introduce new environmental, health, and economic risks. So-called “blue hydrogen,” hydrogen made from methane with CCS, is an emerging market for fossil gas. New research shows that blue hydrogen, far from being “clean,” potentially emits more than burning coal or other fossil fuel sources directly. And carbon capture technologies are not only uneconomic and ineffective, but they are also dangerous and deepen dependence on oil and gas. CCS requires the construction of new hazardous pipelines, disproportionately sited in marginalized communities already overburdened by pollution and systemic environmental racism. What’s more, the vast majority (over 80%) of CCS deployed to date has been for enhanced oil recovery — injecting CO2 into depleted oil wells to pump still more oil out of the ground. These facts about CCS and hydrogen are conspicuously absent from fossil fuel companies’ advertisements, which instead portray CCS as “essential to controlling climate change.” Oil and gas companies are increasingly being called out on this greenwashing, however, by intergovernmental bodies and civil society. The UN Secretary-General announced the creation of an expert group to scrutinize corporate net-zero commitments. And a mounting number of legal challenges are pushing back against misleading advertising and probing for the proof behind the promises. Suing Santos: Proof not Promises On August 25, 2021, the Environmental Defenders Office (EDO) filed Australia’s first oil and gas industry greenwashing case, targeting Australian company Santos. The complaint, filed in Australian Federal Court on behalf of shareholder advocacy group Australasian Centre for Corporate Responsibility, challenges Santos’ claims that fossil gas is clean and that the company has a credible plan to reach net-zero emissions by 2040. Carbon capture and storage and blue hydrogen are integral to Santos’ net-zero plans, and EDO says Santos has failed to disclose the true emissions impact of these technologies. If the complaint moves forward, it will be the first time a court anywhere in the world is called upon to assess the lawfulness of a company’s pledges to reach net-zero emissions using CCS and blue hydrogen. As EDO explains, this is “a landmark, world-first test case in relation to the viability of carbon capture and storage, and the environmental impacts of blue hydrogen, increasingly touted as a key element in gas companies’ pathways toward net zero emissions.” Protecting Consumers Against Climate Deception In the U.S., over half of the more than two dozen cases currently pending in state and federal courts against fossil fuel companies and their industry associations under tort, consumer protection, and investor protection laws reference the companies’ ongoing deceptive practices. Several of these cases specifically describe misleading representations around hydrogen and CCS, indicating that how fossil fuel companies promote their purported climate “solutions” could have legal ramifications. Lawsuits brought by the District of Columbia, Vermont, and New York City, for example, cite Shell’s portrayal of hydrogen as a form of greenwashing. In the DC case, the complaint calls out Shell for advertising hydrogen as “clean” while omitting that nearly all hydrogen produced in the U.S. comes from fossil gas. The case State of Vermont v. ExxonMobil et al. filed in September 2021 also notes that Shell both overstates its investments in hydrogen and ignores the adverse environmental impacts of this alternative fuel. Shell’s omission of the link between fossil gas and hydrogen is also cited in a case filed by New York City on Earth Day 2021 against ExxonMobil, Shell, BP, and the oil and gas lobby group, the American Petroleum Institute, alleging violations of the City’s Consumer Protection Law. That lawsuit, City of New York v. ExxonMobil et al., asserts that fossil fuel defendants have engaged in misleading marketing of their products, including through deceptive portrayals of how technologies affect the impacts of their emissions. For example, the complaint cites ExxonMobil’s ads that present the company as a climate leader because of its work on CCS but fail to mention that Exxon’s operations and products are a leading contributor to the climate crisis – let alone that CCS has repeatedly failed to deliver promised reductions. As the complaint points out: “ExxonMobil captures only about 2 percent of its annual emissions, and [ ] the company’s investments in carbon capture and sequestration are a drop in the bucket when compared to its current and planned spending on fossil fuel exploration, extraction, and development.” Another case, Beyond Pesticides v. ExxonMobil, brought under the DC Consumer Protection Act, likewise alleges that Exxon has engaged in greenwashing, including through deceptive ads that obscure the problems with CCS while making it appear that carbon capture is a major part of Exxon’s business and a key solution to the climate crisis. The complaint points to Exxon’s advertisements comparing its carbon capture technology to carbon dioxide uptake by trees and other plants and to Exxon’s statements that it is a leader in CCS. These representations, the complaint argues, do not disclose that Exxon remains focused on expanding its oil and gas business and that the company’s investments in carbon capture — a costly and unproven technology — are small in comparison: “CCS technology has yet to be proven to be technologically or financially viable at a scale sufficient to offset the effects of ExxonMobil’s production and the use of its petroleum products.” Conclusion Big Oil is going to great lengths to show that it is “going green.” But history provides every reason to doubt those claims and no reason to credit them. In reality, fossil fuel companies’ core business models remain largely unchanged — and as incompatible as ever with climate goals. The industry is using the façade of false climate solutions to deflect and distract from the hard reality that there is no place for fossil fuels in a safe climate future. Business-as-usual oil and gas production by any other name remains climate destruction. And now, in addition to planetary risk, it carries significant legal risk. Advertising campaigns touting fossil gas as “clean” energy, promoting CCS and blue hydrogen as “low-carbon” solutions to the climate crisis, and pledging to achieve “net zero” emissions while continuing to produce oil and gas aren’t just disingenuous. If determined to be misleading representations of commercial activity, they may be illegal under consumer protection statutes and other applicable laws. Furthermore, continued fossil fuel production in the context of the mounting climate emergency may be enough to trigger liability, given the clear evidence that such production is inconsistent with preventing climate catastrophe and protecting human rights. A growing number of lawsuits demand that companies align their operations with the emissions reductions that science shows are necessary to avoid further harm to people and the planet. Courts are being called upon not only to hold companies accountable for their contributions to the present climate crisis and its devastating impacts but increasingly to compel them to act now to prevent ongoing and future harm. This kind of forward-looking corporate accountability is indispensable to climate justice. |
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