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.