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2022 Was a Big Year for Climate Action in the Courts

12/29/2022

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The U.S. Supreme Court is deciding whether to hear petitions brought by fossil fuel defendants in a handful of climate liability lawsuits. Credit: David (CC BY 2.0)
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.

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Courts Will Hear Groundbreaking Climate Cases in 2023

12/20/2022

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Credit: Adrian Grycuk, CC BY-SA 3.0
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.

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the rise in forward-looking corporate climate cases: from shell to santos

1/7/2022

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Article originally published by Center for International Environmental Law (CIEL)

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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. 
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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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