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.
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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.