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.