Hoboken Lodges First State-Level Racketeering Charge in Big Oil Climate Lawsuit
Story originally published in DeSmog
In a first at the state level, the City of Hoboken, New Jersey recently added racketeering charges to its climate lawsuit against major petroleum producers and their national trade group the American Petroleum Institute (API). Hoboken is making this claim against fossil fuel companies under the state-level equivalent of the Racketeer Influenced and Corrupt Organizations (RICO) Act, a federal law used successfully to prosecute organized crime groups such as the Mafia starting in the 1970s and later the tobacco industry. Puerto Rico lodged federal racketeering charges against the industry in a class action climate case last November.
“These racketeering cases should be viewed as a new legal front against the oil and gas industry,” Richard Wiles, president of the Center for Climate Integrity, which advocates for climate accountability from polluters, said by email.
Including a racketeering charge in these lawsuits helps “tell a more robust and full story of what was really happening,” said Delta Merner, a scientist working on climate litigation at the Union of Concerned Scientists. “There really were coordinated efforts to systematically question and cast doubt on the science around climate change.”
Hoboken’s case, initially filed in September 2020, contends that defendants ExxonMobil, Shell, BP, Chevron, ConocoPhillips, Phillips 66, and their lobby group API deliberately misled the public in order to stave off climate action and protect profits. The lawsuit already included claims of public and private nuisance, trespass, negligence, and violation of the New Jersey Consumer Fraud Act. By adding a racketeering claim, the city is alleging that the defendants not only engaged in deceptive acts, but did so in a planned and coordinated way.
“Defendants have conspired to deceive the world for decades,” the amended complaint states in its opening line.
“I think that the addition of a RICO claim helps demonstrate the gravity of the alleged conduct,” Karen Sokol, law professor at Loyola University New Orleans College of Law, told DeSmog by email. “It was not simply a matter of each named defendant’s deception, but rather their collective planning and implementation of multi-pronged strategies to deceive. That sort of conspiratorial conduct has the potential to be particularly harmful, a recognition reflected in RICO laws.”
More than two dozen communities across the U.S. including municipalities, states, and one fishermen’s trade association are currently suing major fossil fuel producers seeking to recover climate-related costs and hold the companies liable for their documented misrepresentations around climate change. At the heart of these climate liability lawsuits are allegations that the industry defendants engaged in a sophisticated, decades-long campaign of deception to distort climate science and conceal the climate consequences of its fossil fuel products. And, as many of the cases argue, the industry’s deceptive conduct continues to this day through even more nuanced strategies.
“These are less about outright climate denial and more about creating the appearance of consensus with climate action advocates on responding to the climate crisis,” Melissa Aronczyk, associate communications professor at Rutgers University, told DeSmog. “This approach allows companies to maintain their reputation; but it’s really just climate denial in disguise.”
Three Stages of the “Scheme to Defraud”
The amended Hoboken complaint argues that the defendants coordinated a “scheme to defraud the public” dating back more than 50 years. This alleged scheme unfolded in three stages.
First, the fossil fuel defendants’ own scientists studied the impact of fossil fuel combustion on climate change and warned executives of the potentially catastrophic consequences, but these warnings were not shared with the public. As early as 1959, for example, physicist Edward Teller spoke about global warming that could melt the ice caps and submerge coastal cities at an oil industry symposium organized by API. In 1965, API’s own president described to an oil industry conference federal research into climate change spurred by fossil fuels, saying, “The substance of the report is that there is still time to save the world’s peoples from the catastrophic consequence of pollution, but time is running out.” Over the following decades into the 1980s, the industry conducted climate research and had reports and memos warning of the impacts of fossil fuels on the climate system.
But then the oil industry started to wage a massive disinformation campaign aimed at deceiving the public about the climate dangers of fossil fuels. This was the second stage of the scheme, lasting through the 2000s. It involved spending tens of millions of dollars on misleading advertising and communications and operating front groups and funding think tanks to help pollute the information landscape. The Global Climate Coalition, formed in 1989, played a central role as a front group for carbon-intensive industries. This group, whose membership included major oil companies and API, spent $13 million on deceptive advertisements designed to cast doubt on climate science. API also created what it called the Global Climate Science Communications Team in the 1990s as part of this allegedly fraudulent communications strategy, and in 1998 that team produced a communications plan, later leaked, which equated “victory” with public uncertainty on climate science.
The third stage of the scheme, as described in the complaint, constitutes concerted greenwashing by the industry to portray the oil and gas business as part of the climate solution. This latest phase has unfolded over the last decade and continues today. The strategy involves tactics like marketing the methane-based fossil fuel natural gas as clean, overstating investments in or activity around clean energy through misleading advertising, and promoting unproven or unscalable technologies as climate solutions.
“These strategies are designed for companies to publicly appear to be responding to the urgency of climate change, while behind the scenes, they’re actively lobbying to prevent or downgrade the impact of environmental or climate regulation,” Aronczyk said.
This delay approach has a real cost for society and the climate, says Benjamin Franta, founding head of the Climate Litigation Lab at Oxford University. “Greenwashing…causes irreversible damage by misdirecting attention, misinforming consumers and policymakers, and wasting time. Legal approaches for counteracting this harmful practice are urgently needed.”
Hoboken’s case is the first to frame the ongoing nature of the fossil fuel industry’s alleged deception in the context of a state-level racketeering charge. The amended complaint calls the acts of racketeering part of these companies’ “regular way of doing business.”
ExxonMobil, Chevron, Shell, and ConocoPhillips did not respond to a request for comment. BP and Phillips 66 declined to comment.
The complaint specifically portrays API as a corrupt or deceptive enterprise, arguing that the oil industry trade association “has been engaged in the business of deceiving the public about the known dangers of climate change for decades — and it continues to engage in such business today.”
API pushed back against this allegation, claiming that communities bringing the climate lawsuits are engaging in a “coordinated campaign” of their own.
“This ongoing, coordinated campaign to wage meritless lawsuits against companies providing affordable, reliable energy is nothing more than a distraction from these important issues and an enormous waste of taxpayer resources,” API Senior Vice President and General Counsel Ryan Meyers said in an emailed statement. “We believe that climate policy is for Congress to debate and decide, not the court system.”
But API works behind the scenes to influence Congress and has spent over $127 million since 1998 on lobbying activities. The oil and gas trade association has spent even more money on public relations and advertising, according to researchers. And in 2021, Franta published a peer-reviewed study that found API was putting out misleading information and misrepresenting climate science as early as 1980.
“Historical and investigative research show that the API has for decades played a key, coordinating role in deceiving the public about global warming, greenwashing the industry’s image, and obstructing efforts to prevent climate damages,” said Franta.
Big Oil’s Conduct “Fits Pretty Perfectly, Almost Like a Glove” to RICO Act Violation
Hoboken submitted its amended complaint last month to the New Jersey Superior Court of Hudson County. The case will be proceeding in this state court after the U.S. Supreme Court rejected a petition from the oil company defendants attempting to force the litigation into federal courts.
“We spent two years fighting to get back to state court and now that we’re here, before we start all the motions to dismiss, it made sense [to amend the complaint] since New Jersey has a RICO statute that’s similar to the federal statute but is a little more receptive to plaintiffs’ claims in some areas,” Matthew Brinckerhoff, an attorney with the law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP that is representing Hoboken in this case, told DeSmog.
He said Hoboken’s case is structured similarly to the federal racketeering case that the U.S. Department of Justice ultimately brought against the tobacco companies, which included claims of disseminating deceptive communications and advertising. The legal term for this in a racketeering case is mail or wire fraud.
“In order to prevail we have to prove that defendants conspired to defraud the public at large, and that they did so using the mail or wires,” Brinckerhoff explained. He said the conduct of the Big Oil defendants “fits pretty perfectly, almost like a glove, with how your typical RICO statute is structured.”
Sharon Eubanks, an attorney who previously led the Justice Department’s successful RICO case against the tobacco industry, noted in a commentary published in the Guardian last year that not only are the behavior and objectives of the tobacco and fossil fuel industries similar, but so are their liabilities.
“And like the tobacco industry while I was in public service, the deceptive advertising and PR of the fossil fuel industry is now under intense legal scrutiny,” Eubanks wrote. She concluded that the “legal tipping point may be soon approaching for fossil fuel companies and the spin masters that work for them.”
The Center for Climate Integrity’s Wiles agrees with the tobacco industry comparison and expects more communities to follow suit with racketeering charges against oil firms. “It’s been obvious for years that fossil fuel companies have conspired together to lie to the public about the dangers of their products — just like tobacco companies before them,” he said. “The Puerto Rico and Hoboken cases are just the first to present the evidence in a lawsuit.”
Story originally published in DeSmog
Montana has hired a climate scientist turned climate contrarian to be an expert witness in an upcoming trial challenging the state’s promotion of fossil fuels.
Climatologist Judith Curry has already billed the state around $30,000 for a report filed in the case Held v. State of Montana, according to the deposition she made in December to an attorney for the 16 young Montanans suing the state. Curry also claimed that she charged $400 an hour for her consulting work, although she did not disclose the full amount Montana will pay her for appearing in court.
Julia Olson, the lawyer who took Curry’s deposition, has described her as “the number one climate skeptic scientist that the Republicans go to for testimony in Congress, that the fossil fuel industry goes to.” Olson is the executive director of the nonprofit law firm Our Children’s Trust, which has spearheaded youth climate change lawsuits across the United States.
At a March 2023 hearing of the Senate Budget Committee, Curry testified that calling climate change a crisis was “at odds with professional judgments of climate risk.”
Formerly a professor at the Georgia Institute of Technology, Curry now runs a private weather forecasting company called Climate Forecast Applications Network. The company’s clients include electric utilities, energy traders in natural gas, and two petroleum companies, according to her deposition.
Montana may end up leaning heavily on Curry’s anticipated testimony, as she will be one of just a few expert witnesses defending the state at next month’s trial. Neuropsychologist Dr. Debra Sheppard and economist Terry Anderson, who is a senior fellow at the Hoover Institution, a free-market think tank, are also scheduled to appear for the state.
The lawyers for the Montana youth, who first filed their complaint in 2020, intend to bring a dozen expert witnesses to the stand.
This case is set to become a landmark for U.S. climate litigation. It will be the first youth climate lawsuit against a government to go to trial, and the first trial in a case challenging fossil fuel friendly policies on constitutional grounds. The trial is scheduled to begin on June 12 at the First District Judicial Court in Helena, Montana.
Curry held faculty positions at the University of Colorado Boulder, Penn State University, and Purdue University prior to her tenure at Georgia Institute of Technology, where she chaired the School of Earth and Atmospheric Sciences from 2002 to 2014. She has also been a fellow of the American Meteorological Society, the American Association for the Advancement of Science, and the American Geophysical Union.
Late in her academic career, Curry began taking public positions on climate change that aligned more with climate science denial rather than credible climate science. In a 2007 op-ed for The Washington Post, Curry stated that “the current debate is whether warming matters, and whether we can afford to do anything about it.” A decade later — in 2017, the year she retired from Georgia Tech — Curry blogged that “we don’t know how much of recent warming can be attributed to humans.” But in 2014, the United Nations Intergovernmental Panel on Climate Change (IPCC) had concluded that human factors are “extremely likely” to be the dominant cause of observed warming — accountable for more than half of the rise in global average surface temperature — since the mid-20th century.
In the report she submitted to the court last fall, Curry claimed that there were too many uncertainties in climate science to judge the origins of climate change. She significantly downplayed the role of human activity in causing climate change, while emphasizing natural climate variability as an important factor in causing it.
Curry did not acknowledge in her report that her views contradict the longtime consensus among the vast majority of climate scientists that burning coal, oil, and gas for energy has been the leading driver of climate change.
“She does not have a leg to stand on,” climate scientist Kevin Trenberth told DeSmog. Trenberth, who has known Judith Curry since the 1990s, is scheduled to appear as an expert witness for the youth plaintiffs at the trial. “She always blames everything on natural variability and greatly underplays human induced climate change.”
In a filing with the court last fall, Trenberth stated that Curry’s shift towards climate contrarianism “coincided with her career moving away from original research and peer-reviewed publishing in academia toward private weather and climate forecasting for companies through her business CFAN, including those in the fossil fuel energy industry.”
Curry’s report also delved into topics beyond climatology, such as youth climate anxiety — which she termed “harm to children from apocalyptic climate change rhetoric” — and Montana’s energy system and environment.
At her December deposition, Curry confirmed that she had never conducted research or even reviewed scientific studies on Montana’s climate. Her credibility in these areas, Curry said, derived from her skills as a fast reader, and a “great Googler and finder of information” who is able to “assimilate a lot of information.”
“What I bring to the table is meta expertise,” she said, “something that is increasingly called ‘wicked science.’”
According to Olson, the deposition demonstrated that Curry is “not really acting as a scientist anymore, but more of someone with personal opinions, blogs, things that really undermine her credibility to testify in court.”
In February, lawyers for the Montana youth filed a request with the court to bar Curry from testifying on topics outside climatology including renewable energy resources, engineering and electric power systems, government energy policy and law, economics and greenhouse gas accounting, Montana’s environment, climate impacts in the state, children’s mental health and psychology, mountain snow hydrology, glaciology, forest management or forest fire science, Google research expertise, and “wicked science.”
Curry declined DeSmog’s request to be interviewed for this story.
Wicked science is an emerging academic discipline that seeks to prepare students in the sciences to grapple effectively with the social and political complexities of society’s most complex challenges, or “wicked problems.” The term was coined by Ohio State University anthropologists Mark Moritz and Nick Kawa.
Addressing a wicked problem like climate change requires a collaborative approach, says Moritz, who has led a successful initiative to establish a graduate interdisciplinary specialization in wicked science at Ohio State.
“Students need transdisciplinary skills that allow them to work effectively with a diverse group of stakeholders, in addition to their scientific skills that they develop as climate scientists, agricultural engineers, anthropologists, et cetera.”
What originated as a conceptual framework within academia, however, now appears to be spreading into the sphere of climate science deniers, including Judith Curry.
During a virtual presentation at the Heartland Institute’s 2023 International Conference on Climate Change (ICCC) — an annual gathering of climate deniers and their political allies — she touted the wicked science concept, and encouraged other climate deniers to adopt the “wicked scientist” label.
“In many ways this ICCC meeting is wicked science in action,” Curry said. “The next time someone calls you a denier, you can respond with this: ‘Give me a break, I’m a wicked scientist.’”
Moritz expressed concern at what he said appeared to be a “co-opting” of the term. He also debunked Curry’s claim during the presentation that wicked science “treats uncertainty as of paramount importance.”
“The uncertainty is just one of the many aspects of wicked science. It’s not the most important,” Mortiz told DeSmog. “It doesn’t mean that you don’t take action.”
“What Curry says is that she finds and assimilates data on the internet, but that is just one step in making sense of data,” he said. “A scientist would ask all kinds of questions about the data and examine its reliability, validity, sources, and biases in order to come to a better understanding of the problem at hand.”
Kawa told DeSmog that Ohio State’s specialization in wicked science trains students on how to bridge differing views.
“To be sure, a major challenge here is when bad faith arguments are made to favor a particular outcome, or when disinformation is used to manipulate different communities of stakeholders,” Kawa said.
“There are no board-certified wicked scientists, so everyone can call themselves a wicked scientist,” Moritz told DeSmog. “However, being ‘smart’ and ‘Googling well’ does not make one a wicked scientist.”
Story originally published in DeSmog
The U.S. Supreme Court on Monday denied requests from major oil companies to intervene in climate liability lawsuits aimed at holding fossil fuel producers accountable for climate damages and alleged disinformation campaigns. The court’s denial of the industry’s petitions means that the lawsuits can advance in state courts, where companies like ExxonMobil and Shell could be forced to face trial.
“Big Oil companies have been desperate to avoid trials in state courts, where they will be forced to defend their climate lies in front of juries, and today the Supreme Court declined to bail them out,” Richard Wiles, president of the advocacy organization Center for Climate Integrity, said in a statement.
More than two dozen communities across the United States have filed climate lawsuits against fossil fuel companies over the past six years. Until now, the litigation has been tied up in procedural wrangling over which courts — federal or state — should handle the cases.
Lawyers for the fossil fuel industry have tried to force the cases into federal courts, where they see an easier path to getting the lawsuits thrown out. The Supreme Court has previously ruled that the Clean Air Act displaces climate-related cases arising under federal common law, and a climate lawsuit filed in federal court by New York City in 2018 was tossed given that precedent. But federal courts that have considered the jurisdiction issue, including six different appeals courts, have unanimously decided that the cases should proceed in state courts. The industry had tried to overturn those decisions by taking the cases to the Supreme Court — but the highest federal court has now effectively shut the door by refusing to review the cases at this stage.
“This is excellent news for the plaintiffs in these climate cases,” Richard Lazarus, a law professor at Harvard University, told DeSmog. “There was a significant risk that the Court might grant review,” he said, adding that future Supreme Court petitions in other climate liability cases “are very unlikely to be granted in light of this ruling, which was in the face of a full court press from industry.”
The Supreme Court’s orders issued Monday apply to a handful of climate lawsuits, including cases brought by the city of Baltimore, the city and county of Honolulu, several coastal communities in California, and the state of Rhode Island, as well as the city and county of Boulder and the county of San Miguel in Colorado.
In the Colorado communities’ case, the Supreme Court had asked the U.S. Department of Justice to weigh in. Last month the Solicitor General filed a brief siding with the communities’ position that the litigation belongs in state court and urging the high court to decline review. The Justices ultimately declined review, though the court’s order noted that Justice Kavanaugh “would grant the petition” in this case. Justice Alito, who owns stock in several oil companies, including ConocoPhillips and Phillips66, recused himself from consideration of the petitions in all of the climate cases.
“Every court that has reviewed this case has come to the same conclusion–that it should be heard in a local court, by a local jury. The Supreme Court’s decision today confirms that,” EarthRights General Counsel Marco Simons said in a statement. EarthRights is helping represent the Colorado communities in court against ExxonMobil and Suncor in their climate liability case that was initially filed in 2018.
Suncor did not immediately respond to a request for comment. ExxonMobil spokesperson Todd Spitler said the company “will continue to fight these suits, which are a waste of time and resources and do nothing to address climate change.”
“We are confident the pending climate lawsuits in the U.S. will ultimately be dismissed,” Theodore J. Boutrous, Jr., of Gibson, Dunn and Crutcher, and lead counsel for Chevron in the climate liability lawsuits, said in an emailed statement. “Climate change is an issue of national and global magnitude that requires a coordinated federal policy response, not a disjointed patchwork of lawsuits in state courts across multiple states. These wasteful lawsuits in state courts will do nothing to advance global climate solutions, nothing to reduce emissions, and nothing to address climate-related impacts,” he added.
“The Shell Group’s position on climate change has been a matter of public record for decades. We agree that action is needed now on climate change, and we fully support the need for society to transition to a lower-carbon future. We continue to reduce our emissions and help customers reduce theirs as we supply vital energy the world needs today,” a Shell spokesperson said in an emailed statement. “Addressing climate change requires a collaborative, society-wide approach. We do not believe the courtroom is the right venue to address climate change, but that smart policy from government and action from all sectors is the appropriate way to reach solutions and drive progress.”
BP declined to comment.
Contrary to the industry’s characterization of the lawsuits, climate accountability advocates say the cases are about holding the industry liable for lying to the public about the climate harms of its products.
“ExxonMobil, Suncor, Chevron, Shell and other fossil fuel companies have known for decades that heat-trapping emissions from their operations and the use of their products drive climate change and its impacts, but they have continued to deceive the public and obstruct meaningful action,” said Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists. “The decision sends a powerful message to fossil fuel companies: Evading responsibility will not be tolerated.”
With the Supreme Court’s denial of the industry’s petitions, climate liability cases brought by Boulder, Baltimore, Honolulu, and other communities are now cleared to move forward in state courts where the proceedings will focus more on the substantive claims of alleged disinformation and deception.
“This changes the calculus significantly,” Karen Sokol, professor of law at Loyola University New Orleans College of Law, told DeSmog. Until now, the allegations of disinformation have not been litigated, she said, but that is about to change.
“Now things will become more interesting for the general public in terms of just thinking of how we got here in this stage in the climate crisis and the industry’s contributions to really polluting the information landscape,” Sokol said. “It’s important just as a matter of democratic governance to understand this sort of conduct.”
Story originally published in DeSmog
A judge in Hawaii has cleared the way for a youth climate case challenging the state’s fossil fuel-dependent transportation system to proceed to trial. The case, which invokes the Hawaiian constitution’s environmental guarantees, will be the second climate trial based on constitutional claims in U.S. history, and the second one this year, when it goes to trial in September.
Judge Jeffrey Crabtree of Hawaii’s First Circuit Court denied the state’s bid to dismiss the youth-led case. In a ruling issued on April 6, he noted that the youth plaintiffs “allege nothing less than that they stand to inherit a world with severe climate change and the resulting damage to our natural resources.” The ruling comes after a January 26 hearing on the state’s motion to dismiss in which more than 100 supporters of the youth plaintiffs packed the courtroom and an overflow room.
“It is reassuring to have a court acknowledge our right to hold the Transportation Department accountable for their contribution to the climate crisis,” said 19 year-old plaintiff Kalālapa Winter, whose case is represented by nonprofit law firms Our Children’s Trust and Earthjustice. “I am excited to finally get to the substance of our claims.”
The lawsuit, Navahine F. v. Hawaiʻi Department of Transportation, is the first-ever constitutional climate case aimed at curbing carbon pollution from transportation systems. Winter is one of fourteen young Hawaiians who brought the case last June against the state of Hawaii, Governor David Ige, the Hawaii Department of Transportation (HDOT), and HDOT Director Jade Butay. By continuing to operate a fossil fuel-dependent transportation system resulting in high levels of greenhouse gas emissions, the case alleges, the defendants are contributing to dangerous climate change and violating the state’s constitutional obligations to protect Hawaii’s natural resources and to ensure the right to a clean and healthful environment for all citizens.
Transportation is the largest source of emissions in Hawaii, whose tropical islands see around 80 percent of commutes by car and have earned a reputation for traffic congestion. According to the youth complaint, citing data from the Hawaii Greenhouse Gas Emissions Report for 2017 issued in 2021, these emissions are expected to rise 41 percent this decade.
While Hawaii has enacted some of the most ambitious climate targets in the United States — including goals to reach both zero emissions and 100 percent renewable energy by 2045 — the state’s transportation department has not implemented measures aligned with these mandates or other laws addressing the state transport sector’s emissions, the case contends. The Department of Transportation has not coordinated with other agencies to implement Hawaii’s zero emissions target, nor has it planned for or supported alternative transportation options to limit emissions, such as vehicle electrification, increasing alternative transport fuels, and expanding public transport and bikeways, the lawsuit argues.
The Hawaii Department of Transportation did not respond to a request for comment on the case. But the state’s attorney general office, which will represent HDOT and the state in court, defended Hawaii’s climate actions.
“The Court’s ruling today merely allows the case to proceed past the pleading stage and does not decide the merits of the Plaintiffs’ allegations,” Hawaii Deputy Solicitor General Lauren Chun told DeSmog in an emailed statement. “The State of Hawaii stands behind its record as a national leader in climate change mitigation and adaptation, and the State will continue to pursue its ambitious climate goals.”
The Constitutional Right to a Clean Environment
The Hawaiian youth claim that the state has violated its legal duty to preserve the natural environment under the state constitution and the public trust, a legal doctrine requiring the government to protect certain resources for public enjoyment and benefit. Hawaii’s constitution explicitly recognizes this obligation with two provisions. One says the state must “conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources” and do so “for the benefit of present and future generations.” Another provision guarantees “the right to a clean and healthful environment” and allows for enforcement of the right through legal means. The Hawaii Supreme Court has recognized, including in a ruling just last month, that this right includes the right to a “life-sustaining climate system.”
A federal judge in Oregon has also affirmed this fundamental right to a stable climate. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” U.S. District Judge Ann Aiken wrote in a 2016 order in the federal youth constitutional climate case Juliana v. United States. Such a right is not, however, expressly recognized in U.S. law, and only a handful of states have included the right to a clean and healthful environment in their constitutions. Hawaii is one of them. Montana also has this constitutional right, which youth plaintiffs will soon be testing as their climate case goes to trial this June.
While other youth-led climate cases at the state level have so far failed to proceed to trial, the cases in Montana and now Hawaii will make history as the first youth-led constitutional climate trials ever to be held in the United States. The fact that climate trials are advancing in these two states that both have constitutional guarantees to a clean and healthful environment might not be a coincidence.
“Having an express right to a clean environment in the state constitution seems to make all the difference,” Michael Gerrard, the founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, told DeSmog. “Our Children’s Trust has brought more than 20 [youth climate] suits, but these will be the first to go to trial. It’s much more persuasive when the plaintiffs can point to explicit language in the state constitution and don’t have to ask the court to infer a constitutional right.”
The trial in the Hawaii case is slated to start on September 26 of this year.
The stakes for climate trials like these are not just philosophical. Kaliko T., one of the younger plaintiffs in the lawsuit, already has felt firsthand the effects of a destabilizing climate. In 2018, Tropical Storm Olivia’s heavy rainfall caused flash flooding that destroyed her family’s home, an extreme weather occurrence expected to become increasingly common in Hawaii under climate change projections.
“I am glad that my story is helping to advance climate action in Hawaiʻi. I don’t want anyone else to suffer the way I and my family have,” she said in a statement.
President Passes a major Climate Test as Department of Justice backs state and City climate Change Lawsuits
Story originally published in SIERRA
The Biden administration failed a major climate test last month when it granted approval of the controversial Willow project in Alaska—and in the process shattered the president’s promise to end new oil and gas drilling on federal lands. Although it received far less attention, the administration in March passed another major climate test and fulfilled one of President Biden’s other climate-related campaign pledges: a promise to “strategically support” climate litigation against carbon polluters.
Since 2017, nearly two dozen cities, counties, and states have filed lawsuits against oil and gas companies in an effort to recover the costs of adapting to climate change damages. None of the cases have yet gone to trial, as the oil giants have waged a procedural campaign to move the cases from state courts to federal courts—which they view as being more sympathetic to their case. Last year, ExxonMobil and oil refining company Suncor asked the US Supreme Court to intervene in the case brought against them by the city and county of Boulder and the county of San Miguel, Colorado. The justices then asked the Department of Justice to provide its opinion on the question of venue before making a ruling.
In a brief submitted to the Supreme Court on March 16, Solicitor General Elizabeth Prelogar urged the court to reject the ExxonMobil and Suncor petition. The Biden administration backed the Colorado communities’ position that the case arises solely under state law and belongs in state rather than federal court. “After the change in Administration … the United States has reexamined its position and has concluded that state-law claims like those pleaded here should not be recharacterized as claims arising under federal common law,” the Department of Justice argued.
Environmental advocates praised the move, which they said is an important step toward holding carbon polluters legally accountable for the damages caused by climate change. “By finally ending its Trump-era support for Big Oil, the Justice Department has added its voice to a series of unanimous court rulings that support communities in their efforts to hold fossil fuel companies accountable for their climate lies,” Richard Wiles, president of the Center for Climate Integrity, said in a statement.
Not surprisingly, the Trump administration previously had intervened in support of the oil and gas defendants and argued that the climate lawsuits should proceed in federal courts. But that argument seems to be a willful misreading of the law. The state and city lawsuits were carefully crafted to target not the climate problem itself, nor the production and use of fossil fuels, but the industry’s false representations—essentially lies—about the climate risks of its products. As a federal appeals court noted in a March 23 ruling affirming that Minnesota’s case against oil and gas companies belongs in state court, Minnesota is among “the growing list of states and municipalities trying to hold fossil fuel producers responsible for alleged misrepresentations about the effects fossil fuels have had on the environment.” With that ruling, the Eighth Circuit Court of Appeals became the sixth federal appeals court to say that this kind of litigation should be handled by state courts.
The lower courts have unanimously and repeatedly rejected the defendants’ attempts to force the cases into federal courts. This means the Supreme Court is likely the industry’s last shot at avoiding state courts, where it could face discovery and trial—and the risk that the details of its alleged deceptive conduct will finally be revealed. Advocates for polluter accountability, including some Democratic senators and Democratic state attorneys general, have spent two years calling on Biden’s Department of Justice to reverse its Trump-era position on the climate liability lawsuits. But the department had remained on the sidelines until the solicitor general filed her brief last month.
Alyssa Johl, an attorney with the Center for Climate Integrity, said the Supreme Court justices will be “looking to see whether the Biden DOJ will take a different position than the Trump administration.” She added that it is clear from a legal standpoint that the industry’s argument is wrong. “The law is on the side of the plaintiffs,” she said. “It’s very clear these cases can and should proceed in state court.”
Karen Sokol, a professor at Loyola University New Orleans College of Law, agreed that the law is clear and that the industry’s interpretation of it is wrong. “The industry has no basis for removing [these cases] to federal court,” she said.
But Sokol said she is concerned that the Supreme Court might consider granting the industry’s petition anyway and was surprised that the court even requested the Justice Department to weigh in. “It seems like a no brainer in terms of denial [of the petition]. So to me, asking the solicitor general is odd,” she said. “I don’t have confidence that the solicitor general’s brief will matter a lot. I think this [Supreme Court] majority does what it wants.”
DOJ could conduct its own probe of Big Oil’s climate lies
Climate accountability advocates are also urging the Department of Justice to go a step further and open its own investigation into Big Oil and climate deception.
“The US has dealt with large corporate interests lying to the American people before, and we need to take lessons from that important work,” said Delta Merner, lead scientist at the Union of Concerned Scientists’ Science Hub for Climate Litigation. “The DOJ can take the additional step of launching its own investigation into the fossil fuel industry for its decades of lying and even bring a civil suit against the industry as it did with Big Tobacco.”
Johl and Sokol agreed with Merner that it would be appropriate for the Department of Justice to use its authority to open an investigation into the fossil fuel industry and potential civil fraud, building on the investigative work undertaken by the House Oversight Committee during the last Congress.
“If the administration is serious about tackling climate change, and there’s not more they’re going to get out of Congress, then they can take enforcement action in their own right,” Johl said.
Senator Sheldon Whitehouse, the Rhode Island Democrat who is one of the leading climate hawks in Congress, has called on the Department of Justice to hold the fossil fuel industry accountable for its climate misdeeds. During a congressional oversight hearing on March 1, Whitehouse questioned Attorney General Merrick Garland about DOJ’s involvement in climate liability litigation against fossil fuel companies, and asked if anyone in the department has taken a look at federal involvement in that space. “I can assure you that the Environmental and Natural Resources Division has taken a very close look at this question. But beyond that I really can’t say,” Garland responded. Whitehouse then said that the last time the DOJ “took a really close look at this question” (under Trump) it got the standard of decision wrong, applying a criminal standard of review to civil litigation. The senator was referring to the Trump administration’s refusal to open a civil fraud investigation into the fossil fuel industry by claiming that it would have to prove its case beyond a reasonable doubt, which is the standard for criminal cases.
“Big Oil’s two primary products are hydrocarbons and lies” Whitehouse said in an emailed statement to Sierra. “The Department of Justice should take a hard, honest look at the habitual lies the fossil fuel industry has sold to the American public. Its previous ‘look’ was neither hard nor honest, getting the obvious standard of proof wrong. DOJ has a ready-made template in its successful civil action against the tobacco industry for fraudulently denying the dangerous nature of its products. If the Department seriously investigates Big Oil’s web of denial, it may well find an even bigger fraud. But you won’t find what you won’t look for.”
Climate litigation "is an important step forward"
Climate litigation has become an increasingly important tactic in pursuit of holding government and corporate actors accountable for exacerbating the climate emergency. The federal government is a defendant in the groundbreaking constitutional climate lawsuit Juliana v. United States, first launched in 2015 by 21 young people seeking a judicial remedy to the intergenerational injustice that is climate change. That case is currently pending a decision from a federal district judge on whether it can proceed under a revised version of the complaint. Should it get the green light, the Department of Justice will have to decide whether to continue the relentless obstruction it waged under the previous two administrations—delaying or shutting the case down at every opportunity—or to take a less contentious approach, allowing the case to finally go to trial or entering into settlement talks with the plaintiffs. As Phil Gregory, counsel for the youth plaintiffs, explained to Sierra, “The question is, Does Biden want to be Trump when the case moves forward?”
In the cases involving the local and state governments suing major oil and gas companies, the federal government is not the defendant, but it does have an opportunity to be an ally to communities seeking accountability from the industry. With its recent Supreme Court brief backing the Colorado communities in their case against Big Oil, the Department of Justice has seized that opportunity.
The state and local litigation against the fossil fuel industry is a key part of the larger response to the climate crisis. Even the head of the United Nations appears to endorse the strategy. “Legal action against companies that destroy the climate is an important step forward,” UN Secretary General António Guterres said in a speech to the UN Human Rights Council on February 27.
While Biden’s top climate-action accomplishment—the Inflation Reduction Act—might go a long way in incentivizing the green energy transition, it stops short of offering any justice to communities grappling with increasingly intense and costly climate disasters.
“The IRA was an important win, but there is so much more that needs to be done to address the impacts of climate change,” Merner said. “Big Oil actively deceived the public about the impact their products would have on climate change—the science on this is clear and the evidence against them continues to mount—climate litigation is a unique way for local leaders and communities to fight for justice and accountability in the face of growing climate harms.”
Story originally published in DeSmog
Two historic developments last week are putting the climate crisis squarely on the docket of some of the world’s highest courts. On March 29, an international human rights court in Europe held a pair of hearings addressing government responsibility on climate change for the first time. That same day, the United Nations General Assembly adopted a resolution asking the International Court of Justice to weigh in on nations’ legal obligations to ensure protection of the climate system.
The outcomes of the proceedings, experts say, could significantly advance climate justice and accountability as well as clarify the requirements under international law for governments to curb climate breakdown.
The two cases argued before the European Court of Human Rights on March 29 accuse the governments of Switzerland and France of failing to take sufficient measures to fight climate change and protect citizens from worsening climate impacts, such as extreme heat and flooding. The alleged failings contribute to mounting risks to human life and health in violation of the European Convention on Human Rights, the cases claim.
In the first climate case ever to be heard by the European court, located in Strasbourg, France, lawyers representing more than 2,000 elderly Swiss women highlighted the urgency and immense peril the climate crisis presents, and argued that Switzerland is not doing its “fair share” to rein in greenhouse gas emissions.
“There is no time left. Dangerous climate change is with us all,” Marc Willers, a lawyer with the UK-based firm Garden Court Chambers, said during the hearing. He explained what would constitute Switzerland’s allowable level of emissions, as calculated by independent scientific experts, under the world’s remaining carbon budget — the amount of carbon dioxide that can still be emitted for temperature rise to stay below a given threshold, such as 1.5°C. Under current policies, Switzerland is expected to use up its share of this global budget by 2034 and then will be taking away from other countries’ shares. “This is carbon theft,” Willers said.
The case, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, is brought by an association called Senior Women for Climate Protection Switzerland and four individual elders. It argues that senior citizens, particularly women, are at heightened risk of severe health impacts, including death, from extreme heat events that are occurring more frequently as Earth warms. The senior women say that Switzerland’s inadequate climate policy leaves them exposed to more lethal heatwaves, in breach of their right to life and to family and private life under the European Convention on Human Rights. The Swiss domestic courts had previously dismissed the case, finding that elderly women are not uniquely harmed by climate change and that rights had not yet been violated.
Swiss government representatives said the Strasbourg court should similarly find the case “inadmissible” or alternatively find that no human rights violations have occurred. They defended Switzerland’s climate policy at the hearing and claimed that the state is “already doing what is expected in terms of climate protection.”
Should the European Court of Human Rights reject the government’s claims and rule favorably for the Swiss women, it “could set an important legal precedent” according to Katharina Rall, senior researcher in environment and human rights at Human Rights Watch. “This case could play an important role in holding governments to account for their inaction on climate change,” Rall wrote in a recent piece reflecting on the hearing.
Following the Swiss case, the court’s Grand Chamber panel of 17 judges next heard arguments in the case Carême v. France. Brought by the former mayor of the French coastal community of Grande-Synthe, the case challenges France’s climate policy and seeks to force the government to implement more stringent emissions reduction measures. The plaintiff Damien Carême argues that he is personally affected by France’s climate response, as his home community is at severe risk of climate-induced flooding.
The court’s Grand Chamber is slated to hear a third climate lawsuit — a case brought by six Portuguese youth against 33 European states — later this year. These three leading cases will result in judgments in which Europe’s highest human rights court will for the first time have to grapple with governments’ responsibility to safeguard human rights in the context of climate change. Rulings on the cases are expected at the end of this year at the earliest.
World Court to Examine Questions of Climate Justice
On the same day the European court heard its first climate cases, the United Nations General Assembly convened in New York and adopted by consensus a resolution seeking clarification on countries’ legal obligations concerning climate change. The resolution requests that the International Court of Justice produce an advisory opinion on the questions of states’ legal obligations to protect the climate system and the legal consequences of failing to uphold these obligations, particularly with respect to the effects on small island developing states and to present and future generations.
The Pacific Island nation of Vanuatu spearheaded the resolution, backed by more than 130 nations as co-sponsors. Law students at the University of South Pacific in Vanuatu first proposed the idea to bring the issue of climate justice to the world’s highest court in 2019. Vanuatu’s government embraced the initiative and led an international coalition to drum up support for an official UN resolution on the matter. With the resolution’s adoption last week, legal proceedings are expected to begin in the coming months at the International Court of Justice, based in The Hague, Netherlands. These proceedings will include written statements and oral hearings, resulting in a formal opinion issued by the court.
Although not legally binding, the court’s advisory opinions can be influential in terms of clarifying questions under international law. This opinion could help strengthen climate litigation and push states to adopt more ambitious climate policies.
“The ICJ’s advisory opinion would help motivate nations to increase their climate ambitions to align as closely as possible to global temperature targets,” said Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists. “The ICJ’s ruling will have far-reaching impacts on how communities across the world are able to fight for climate justice,” she added, “including reinforcing the underlying legal rationale for thousands of climate litigation cases currently filed in local, state, national, and international courts.”
Human rights organizations hailed the UN’s adoption of the resolution as a critical step in the fight for climate justice. Amnesty International referred to it as a “landmark moment” while Human Rights Watch said it is a “milestone in defining the human rights obligations of governments.”
For the first time, an international human rights court in Europe held a pair of hearings on cases seeking to hold governments accountable for their role in contributing to the climate crisis and allegedly failing to protect citizens from worsening climate impacts such as extreme heat and flooding. The two climate cases argued before the European Court of Human Rights on March 29 could set a precedent in establishing states’ obligations to take more ambitious climate action in order to safeguard human rights under European law.
The European Court of Human Rights, located in Strasbourg, France, currently has a handful of climate lawsuits pending before it that challenge government policy or conduct in the context of the climate emergency. Two of those cases came before the court’s Grand Chamber panel of 17 judges last week and a third case is set to be heard by the same panel later this year. These leading cases will render judgements in which the court will grapple with the impacts of climate change on human rights and determine whether breaches of rights have occurred stemming from European states’ alleged failure to effectively mitigate greenhouse gas emissions.
In the first cases to come before the court on March 29, the climate ambitions and actions of the governments of Switzerland and France are at issue, charged by the plaintiffs (or applicants in this context) to be woefully inadequate. Both cases claim that this inadequate climate action amounts to violations of the rights to life and to family and private life under Articles 2 and 8, respectively, of the European Convention on Human Rights. The case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, heard first by the Grand Chamber panel, contends that Switzerland’s failure to do its “fair share” to reduce emissions in line with limiting temperature rise to no more than 1.5°C threatens the lives and health of elderly women who are more vulnerable to extreme heat spells. An association of Swiss senior women with over 2,000 members, along four individual elderly women, are the applicants behind this case. In the second lawsuit heard by the court, Carême v. France, the applicant is an individual claiming to be personally affected by the level of climate mitigation undertaken by the French government, as the coastal community that he calls home is at risk of severe flooding and inundation from rising seas. In both cases the applicants argue the state should be doing more to slash emissions and mitigate dangerous warming. The respondent governments defended their climate policy during the hearings, insisting that their climate commitments are sufficient to be protective of citizens’ rights.
First Up: The Swiss Case
The KlimaSeniorinnen lawsuit, lodged with the Strasbourg court in November 2020, seeks to compel Switzerland to reassess its climate targets and take more protective measures to safeguard individuals, particularly the elderly, who are already experiencing adverse health effects as warming intensifies. The complaint asserts violations of Articles 2 and 8 of the European Convention on Human Rights, and the case before the European Court of Human Rights also claims breaches of the applicants’ procedural rights, including access to a court and to an effective remedy. The Swiss domestic courts dismissed the case without properly considering the merits, the applicants say, determining that the senior women are not special “victims” of climate change and that their rights had not yet been violated.
These determinations were erroneous, the counsel for the Swiss senior women told the Grand Chamber panel. “The Swiss courts refused to determine the applicants’ claims, finding there was still time before the Paris Agreement’s temperature thresholds would be breached,” Jessica Simor, counsel for the applicants, said during her presentation at the hearing. “To suggest that until one reaches the moment of catastrophe one’s rights are not affected is to ignore the reality,” she argued, adding: “The applicants before you today are already suffering from the effects of climate change.”
Simor explained how the intensifying impacts of extreme heat events pose serious threats to elderly women’s health and to their very existence, noting that these heat extremes are occurring more frequently and are projected to worsen as the climate crisis continues.
Anne Mahrer, co-president of Senior Women for Climate Protection Switzerland, said that judicial intervention is necessary because “Switzerland is doing far too little to contain the climate catastrophe. Rising temperatures are already having serious impacts on our physical and mental health. The big spike in heat waves is making us older women sick.”
It even poses life-threatening risks especially to the elderly, as people become less capable of regulating internal body temperature as they age. “No one before this court disputes that heat kills,” Simor said, noting that “women over 65 are at real risk of not only serious mental or physical impairment, but of death.”
Counsel for the Swiss senior women argued that these impacts and risks can be linked to Switzerland’s allegedly ineffective climate mitigation measures. They say that failing to undertake only the most ambitious climate action, and what scientific experts have calculated as each state’s “fair share” of emissions reduction, exacerbates the climate crisis and contributes to the collective risk of the world overshooting the 1.5°C or even 2°C warming thresholds, where many adverse impacts become compounded and irreversible.
“Every increment of global warming will intensify multiple and concurrent hazards,” Simor said, citing the latest summary report from the Intergovernmental Panel on Climate Change released on March 20. This scientific finding weakens the defense that emissions from any single state or actor is relatively insignificant on a global scale, counsel for the applicants maintain.
The hearing discussed Switzerland’s climate policies and targets, with the applicants’ counsel claiming they fall far short of what is necessary for the state to do its fair share in the global climate fight. According to Simor, expert scientific assessments have calculated what each state’s fair share of emissions reduction should be, based on the remaining ‘carbon budget’ and accounting for historical responsibility and current capabilities – for Switzerland, it is calculated at up to 200 percent emissions reduction (below 1990 levels) by 2030, meaning some of that reduction would entail assisting other nations in decarbonizing. Although Switzerland has increased its domestic 2030 climate target, it has not taken legislative effect and the current policies are “insufficient” to be compatible with the Paris Agreement objectives, according to Climate Action Tracker, an independent climate policy assessment initiative.
The Swiss government disputed the claim that it is failing to take adequate action on climate. “The Swiss government is fulfilling its duty to afford protection of the applicants’ rights,” Franz Perrez, the Swiss ambassador for the environment and chief negotiator for Switzerland at the UN Framework Convention on Climate Change Conference of the Parties, argued at the hearing. He asserted that Switzerland is complying with “all obligations under the Paris Agreement” and contended that there is no internationally established objective criteria to determine what constitutes a country’s “fair share” of emissions reduction.
Another Swiss government representative, Alain Chablais, offered several reasons for the court to reject the applicants’ case. Climate and environmental policymaking must be a democratic process and is not suitable for judicial review, he claimed. He also argued that a direct causal connection cannot be established between the government’s conduct and the alleged climate-related harm, and said that there is no immediate risk to the applicants’ lives.
The government of Ireland is one of the European states backing Switzerland’s position as a third-party intervenor in the case. Catherine Donnelly, a lawyer for Ireland, presented during the hearing claiming that the case unjustifiably extends the scope of the European Convention on Human Rights and that a positive judgment would bypass the democratic political process and upset the international regime on climate governance.
A lawyer for the European Network of National Human Rights Institutions, which is intervening in support of the applicants, said that those claims are wrong. Scrutiny of a state’s emissions reduction would strengthen democracy and would indeed be consistent with international law, argued Jenny Sandvig, counsel for the Network. “Courts worldwide confirm that states may be held accountable for harm caused in its territories by climate change, because any reduction in emissions matters,” she said.
The Carême Case
In the afternoon hearing on March 29, the Grand Chamber panel listened to presentations from the French government and from the lawyer representing the plaintiff or applicant, Mr. Damien Carême, who is likewise suing the state for allegedly failing to take adequate climate protection measures. Carême initially brought his legal challenge before a French court as the mayor of a coastal community called Grande-Synthe that is at severe risk of flooding. The French court – the Conseil d’État – dismissed his personal interest in the case but upheld the community’s right to sue the state, and ultimately ordered the French state to take additional measures to ensure it would comply with its 2030 emissions reduction target – a 40% cut in emissions.
Carême took his case to the European Court of Human Rights seeking to compel France to take more aggressive mitigation measures, and claiming that he is personally impacted by climate change as he expects his home community to be compromised by climate-induced flooding. His health is also impacted as he suffers from asthma.
Diégo Colas represented the French government at the hearing and argued that the flood risk is too remote and general to constitute violations of rights. He additionally claimed that France is taking appropriate climate action and that the Paris Agreement does not indicate how to calculate a “fair share” of emissions reductions.
But according to Corinne Lepage, a lawyer representing Carême, measures taken by the government “remain insufficient to meet even the inadequate climate target of 40 percent emissions reduction by 2030.”
Several of the Grand Chamber judges asked questions about Carême’s current residency. In responding, Lepage clarified that her client now lives in Brussels, Belgium while he serves on the European Parliament. But she said that he remains deeply connected to Grande-Synthe with close family ties there and that he expects to return as a resident in the future.
The Grand Chamber said it will issue a decision on the cases at a later date.
Story originally published in DeSmog
Montana has repealed its 30-year-old energy policy – including a 2011 amendment that prioritized fossil-fuel development. The move comes as a June trial date approaches for a youth-led climate lawsuit against the state.
In the lawsuit, Held v. State of Montana, sixteen Montana children and teenagers say that by actively promoting a fossil-fuel based energy system that is dangerous to the climate, state officials are violating the “right to a clean and healthful environment” for present and future generations under the state Constitution. It is the first constitutional climate case to go to trial in the United States.
Montana first enacted a state energy policy in 1993. Since then, it has periodically revised and updated the statute. In 2011 the state legislature amended the policy to add provisions calling for increased fossil fuel development, along with references to developing other energy resources and technologies like wind, green hydrogen, and batteries.
Additionally, the 2011 legislature added a provision to the Montana Environmental Policy Act that prohibited environmental reviews of state-sponsored projects, including energy development, from considering impacts beyond state borders.
The youth-led lawsuit against the state challenges both provisions, claiming they explicitly promote fossil fuels while restricting the state from considering how coal, oil, or gas development contribute to the global climate crisis.
For now, the legislature has left standing the 2011 provision to the Montana Environmental Policy Act that limits environmental reviews of major actions, such as energy project permits, to considering impacts only within Montana’s borders. The youth lawsuit charges that this provision amounts to a “climate change exception.”
“The state relies on that provision to ignore the climate impacts of fossil fuel projects,” said Nate Bellinger, an attorney for the youth plaintiffs. “You have these two things working together – an explicit or implicit policy of approving fossil fuel projects while at the same time ignoring the climate impacts of those projects. So that’s the state system we’re challenging as unconstitutional.”
A Convenient Repeal
In early January, Montana Republican Rep. Steve Gunderson introduced legislation to repeal the state energy policy. The bill easily passed the Republican-controlled House and Senate, with no Democratic support. Republican Gov. Greg Gianforte signed it into law on March 16.
At a House committee hearing on the bill in January, Michael Freeman, a natural resources policy advisor to Gianforte, told lawmakers that the state would still have an energy policy after the repeal.
“The proposed legislation here does not conflict with the energy policy and in fact it helps clarify Montana’s energy policy,” Freeman told the Montana House Energy, Technology, and Federal Relations Committee. “From the governor’s perspective we do have an energy policy, it is an all of the above energy policy.”
Gunderson claimed that the repeal was intended to “[follow] the governor’s red tape reduction plan in that it removes a bloated bag of air that only takes up space” in state law. “It says nothing, it does nothing, and it has no teeth.”
Neither Freeman nor Gunderson responded to DeSmog’s requests for comment on the intent behind the bill.
Bellinger thinks the repeal of the state’s energy policy was a response to the youth climate case.
“The state has fought this lawsuit for three years now and tried to get it dismissed multiple times,” said Bellinger, the senior staff attorney with Our Children’s Trust, a non-profit law firm that has represented children in a number of climate cases around the country. “I think they’re concerned about the evidence that will come out,” he said, referring to Montana’s proactive support for fossil fuels.
In a recent court filing, an expert witness for the youth plaintiffs stated that she also suspected that the repeal was an attempt to take a swipe at the lawsuit.
“My immediate reaction was, this is being done to undermine Held v. State of Montana,” Anne Hedges, director of policy and legislative affairs at the nonprofit advocacy organization Montana Environmental Information Center, wrote in a declaration filed with the court in February.
“I believe that the reason Governor Gianforte is pushing the repeal of [the state’s energy policy] is to try and undermine this case so that Defendants can continue their conduct without any constitutional oversight. I do not believe that it will result in less fossil fuel permitting in Montana,” Hedges further stated in her declaration.
Pat Parenteau, emeritus professor of law and senior fellow for climate policy at the Vermont Law and Graduate School’s Environmental Law Center, told DeSmog he expects the Montana attorney general will argue at trial that the repeal “moots” or nullifies the case’s challenge to the state energy policy.
Montana’s Alliance with Fossil Fuels
The youth plaintiffs and their expert witnesses contend that Montana has a long history of permitting and prioritizing coal, oil and gas development. Montana is home to part of the Bakken oil and gas shale formation and contains the largest recoverable coal reserves in the U.S. Coal still accounts for almost half of the state’s electricity, and there are six coal mines that continue to operate in the state.
In her February filing, Hedges referenced her own expert report to the court in September 2022, in which she noted that no Montana state agency has ever denied an environmental permit to a fossil fuel company. Her report included evidence of what she described as the state’s “longstanding practice of collaborating with the fossil fuel industry to permit fossil fuel projects.”
Montana also has an established record of promoting and defending fossil fuels. In 2012, the state’s Department of Environmental Quality authorized the Montana portion of the Keystone XL crude oil pipeline. And in 2019, Montana along with North Dakota sent a petition to federal regulators seeking to invalidate a Washington law regulating volatile crude oil by rail.
The latest example is a lawsuit filed in February by Montana Attorney General Austin Knudsen against the city of Portland, Oregon for its ban on expansion of fossil fuel storage facilities as well as new fuel transport infrastructure, such as gas export terminals. Montana alleges that the ban has restricted the state’s ability to access international markets for its fossil fuel products. Several oil and gas groups, such as the Western Energy Alliance, have joined Montana in the suit.
Some state lawmakers have close ties to the fossil fuel industry. State Rep. Gary Parry, a current member of the House Natural Resources Committee, used to work in the coal industry, as did recently retired state senator Duane Ankney. Ryan Zinke, the U.S. representative for Montana’s 1st congressional district, facilitated oil and gas development on federal public lands while Secretary of the Interior during the Trump administration. Zinke was also on the board of oil pipeline company QS Energy from 2012 to 2015.
The current head of the Montana Petroleum Association, Alan Olson, served in the state legislature for 14 years as a representative and senator. In late January, Olson testified to the State Senate in support of the energy policy repeal.
First Constitutional Climate Trial in US History
The Held v. State of Montana case is scheduled for trial June 12 – 23 at the First Judicial District Court in Helena, Montana. The youth plaintiffs seek a court declaration that the state’s promotion of fossil fuels is unconstitutional.
The case was initially filed in March 2020 on behalf of sixteen Montana youths ranging in age from 2 to 18 years. Defendants include the state of Montana, then-Gov. Steve Bullock, and several agencies including the Montana Department of Environmental Quality, the Montana Department of Natural Resources and Conservation, the Montana Department of Transportation, and the Montana Public Service Commission.
In response to DeSmog’s request for comment, representatives of the Department of Environmental Quality, the Department of Natural Resources and Conservation, and the Public Service Commission said that they do not comment on pending or ongoing litigation. The governor’s office did not respond.
The case is the first climate-related constitutional challenge to government conduct to make it to trial in the U.S. State courts have so far dismissed other youth climate cases during pre-trial proceedings.
In January 2020, a federal youth climate lawsuit targeting the federal government, Juliana v. U.S., was ultimately dismissed before the trial could take place. That case is currently awaiting a decision on a revised complaint that could put it back on the path to trial.
The Montana case could be a game changer in terms of setting a legal precedent that government support of fossil fuels is unconstitutional. At a December webinar, Mat dos Santos, general counsel at Our Children’s Trust, said that the lawsuit “is not just about Montana. It’s really about the climate here in the United States and around the world.”
A victory in Montana would be a “watershed moment” leading to a “cascade of legal victories around the country,” dos Santos claimed, and would likely have global implications.
The upcoming trial may expose Montana’s preferential treatment of fossil fuels during a time of climate emergency, when the world’s top climate scientists warn that reigning in dangerous greenhouse gas emissions requires a “substantial reduction in overall fossil fuel use.”
“This is a case about protecting plaintiffs’ constitutional rights, and those rights don’t depend upon any elections or actions the legislature takes,” said attorney Bellinger. “That’s why it’s so important that this case is going to trial and it doesn’t really matter what the legislature does between now and then.”
Climate Cases Set for Historic Hearings This Week at European Court of Human Rights
Climate change is on the docket this week at the European Court of Human Rights in Strasbourg, France. The European court will hold its first ever public hearings on climate in two high-profile cases that could have far reaching consequences in terms of clarifying states’ legal obligations on climate action under human rights law.
The court’s Grand Chamber is scheduled to hear two climate cases on Wednesday, March 29. The first case, KlimaSeniorinnen Schweiz and others v. Switzerland, features a group of elderly Swiss women taking on the Swiss government for allegedly failing to take sufficient measures to limit dangerous warming, thereby exposing older women to adverse health impacts from rapidly intensifying extreme heat events. The hearing in this case is slated to start at 9:15am CET, and will be the first climate case ever to come before the Grand Chamber’s panel of 17 judges. The Chamber will hear a second climate case that same day, scheduled for 2:15pm CET. This case, Carême v. France, involves an individual – a former mayor of a coastal French village – suing the French state alleging inadequate climate action and claiming he is personally affected by the government’s response to climate change.
The hearings themselves are historic because it marks the first time the European Court of Human Rights (ECtHR) will be grappling with climate change, which human rights experts have warned threatens human rights on a massive scale.
“This is something new to us,” Natalia Kobylarz, senior lawyer at the Registry of the European Court of Human Rights, said during a recent webinar hosted by the Sabin Center for Climate Change Law at Columbia University. “This is the first time the court is dealing with this particular problem.” She said that the European Convention of Human Rights, the 1950 treaty that the court enforces, was not designed to deal with environmental issues or climate change. The court will be applying the existing legal framework to a novel situation, though one that has clear impacts on a wide range of human rights.
According to a February press release from KlimaSeniorinnen Schweiz and Greenpeace Switzerland, “The final judgement of the ECtHR can have far-reaching consequences, not only in Europe but worldwide, as it can create an important benchmark regarding the human rights obligations of states in connection with climate change.”
The ruling from the court in these two climate cases is expected to come at a later date. The same day the court holds its landmark climate hearings – March 29 – the United Nations General Assembly is scheduled to vote on a resolution led by the Pacific Island state of Vanuatu requesting an advisory opinion from the International Court of Justice clarifying states’ legal obligations to protect the climate system. If the resolution is adopted as expected, the ICJ, which serves as a sort of “world court” under the UN system, will hold hearings and issue its opinion. The advisory opinion “would be a major step forward in understanding how to use the courts to promote climate justice and human rights,” Shaina Sadai, Hitz Fellow for litigation-relevant science at the Union of Concerned Scientists, explained in a recent blog post.
Additional Climate Lawsuits Pending
The climate cases that will come before the ECtHR Grand Chamber this week are just two out of a handful of climate cases that have been filed with the court over the last three years. A groundbreaking lawsuit brought against 33 European states by six Portuguese youth, launched in September 2020, has also been referred to the Grand Chamber and is slated for a hearing later this year. Similar cases from two young adults in Italy targeting 33 European states are on hold until the Grand Chamber rules on the climate cases before it. Additionally, cases brought against Austria, Germany, Norway, and a dozen European states are also “adjourned” or paused pending the Grand Chamber’s resolution of the initial climate cases before it.
What are the Cases the Court Will Hear This Week?
The KlimaSeniorinnen case notably involves not youth plaintiffs but rather senior citizens. A group called Senior Women for Climate Protection Switzerland along with four individual elderly Swiss women initiated legal action against the Swiss government in 2016. They argue that the government's climate targets are insufficient to limit warming to well below 2 degrees Celsius – the objective set forth in the Paris Agreement - and violate their fundamental rights under the Swiss constitution and the European Convention on Human Rights. The Swiss courts rejected the case, and having exhausted domestic remedies, the plaintiffs then applied to the European Court of Human Rights in November 2020. They allege the government’s failure to adequately respond to the climate crisis violates their rights to life and to private and family life under Articles 2 and 8 of the European Convention on Human Rights. The plaintiffs want the court to order Switzerland to adopt more stringent climate policy measures aligned with limiting warming to 1.5°C, including concrete emission reduction targets.
As one of the members of the Senior Women for Climate Protection Switzerland association wrote in a recent blog post, the case is not only about the rights of Swiss elders. The potential impact for younger generations is a big reason driving many of the senior women to take on the climate fight through the courts.
“In the legal process, we are only fighting for our human rights. At the same time, it is important to us that this fight also benefits younger and future generations. The great concern for the future of our children and grandchildren is an important, undeniable motivation for my commitment,” Elisabeth Stern explained.
The Carême case is also not brought by young people, or even by a group. The plaintiff is an individual, Damien Carême, who resides in the northern French coastal community of Grande-Synthe and served as mayor from 2001 to 2019. In 2019 he and his municipality brought legal action against the French State for refusing to take stronger measures to meet its objective of reducing emissions 40 percent by 2030. The Conseil d’État handled the case, finding in favor of the municipality and ordering the national government to take additional actions as necessary by March 31, 2022; the court however dismissed Carême's interest in the case. This dismissal formed the basis for the application to the ECtHR. Carême contends that he does have a stake or interest in whether or not the government takes more stringent climate action, as escalating climate change impacts his capacity to enjoy his property and private life in a place vulnerable to impacts like coastal flooding. He brings his case under Article 2 (right to life) and Article 8 (right to private and family life) of the European Convention on Human Rights.
As a press release from the European Court on Human Rights further explains, Carême “submits that he is directly affected by the Government’s failure to take sufficient steps in the combat against climate change, since this failure increases the risk that his home might be affected in the years to come, and in any event by 2030, and that it is already affecting the conditions in which he occupies his property, in particular by not allowing him to plan his life peacefully there. He adds that the extent of the risks to his home will depend in particular on the results obtained by the French Government in the prevention of climate change.”
Proceedings from the March 29 hearings will be available to watch (as webcasts, not live) on the court’s website.
US Justice Department Tells Supreme Court to Reject Big Oil Petition in Colorado Climate Lawsuit
Story originally published in DeSmog
Communities in the United States suing major fossil fuel producers over climate-related harms got a boost in court on Thursday. At the request of the U.S. Supreme Court, the Department of Justice weighed in on a key procedural question that has been ensnaring the progress of many climate accountability lawsuits — the question of where the lawsuits should be heard.
In 2018, the city and county of Boulder and the county of San Miguel in Colorado filed suit in state court against ExxonMobil and Suncor, arguing the oil companies’ disinformation about their products hurt Coloradans. But the oil companies pushed for the case to be tried in federal, not state, court – a seemingly minor distinction that could have major consequences.
Last October, the Supreme Court called on the U.S. Solicitor General to file a brief “expressing the views of the United States” regarding this jurisdictional dispute that has tied up the Colorado and other climate liability lawsuits and delayed them from getting to trial. The fossil fuel defendants have been fighting relentlessly to force the cases into federal court, where they see an easier path to dismissal, while the communities suing companies like ExxonMobil want the litigation to proceed in state court where it originated.
In its brief filed Thursday, the Solicitor General backed the Colorado communities’ stance that their legal claims arise solely under state law and therefore belong in state court — a reversal from the Justice Department’s position under the Trump administration supporting the fossil fuel industry’s arguments.
“By finally ending its Trump-era support for Big Oil, the Justice Department has added its voice to a series of unanimous court rulings that support communities in their efforts to hold fossil fuel companies accountable for their climate lies,” Center for Climate Integrity president Richard Wiles, an advocate for holding climate polluters accountable, said in a statement.
The move potentially puts the Colorado communities one step closer to finally getting to trial in state courts.
“Since the Colorado communities filed this case in 2018, ExxonMobil and Suncor have consistently sought to delay the litigation — moving the case from court to court and losing each step along the way. Today’s development brings these communities one step closer to holding fossil fuel companies accountable for their misconduct and obtaining remedies for the serious climate harms Colorado residents are facing,” said Marco Simons, general counsel at EarthRights International, which is supporting the Colorado plaintiffs. As the climate heats up, Colorado is facing hotter springs and summers, a lengthening wildfire season, and shifting precipitation patterns.
The Colorado case, like other climate liability cases filed by municipalities and states against Big Oil, alleges that the industry engaged in a decades-long campaign of disinformation and deception that misrepresented the climate dangers of its products. The case alleges violation of state law, including the Colorado consumer protection statute, and despite dogged attempts by Exxon and Suncor to punt the case to federal court, these courts have repeatedly said that they are not the appropriate venue for the litigation. A federal appeals court ruled twice that the Colorado case belongs in state court.
ExxonMobil and Suncor then turned to the Supreme Court, filing a petition for review in a last-ditch effort to avoid having to litigate in state court. It wasn’t the first time the industry filed with the Supreme Court in climate liability litigation. In October 2020, the high court granted the industry’s petition in a case filed by Baltimore and then ruled in the industry’s favor on a narrow technical issue that forced federal appeals courts to revisit their previous rulings in several cases, including the Colorado case. Since then, five federal appeals courts have all upheld the position that these cases belong in state court.
Now the federal government has added its weight behind this position. In its brief, the Department of Justice said that it has “reexamined” its own stance and concluded that state law claims should not be “recharacterized” as arising under federal law. The Justice Department says the Supreme Court should deny the industry’s petition in the Colorado case.
It remains to be seen whether or not the Supreme Court will follow this advice. If the Court does deny the petition, it may also deny petitions pending in a handful of similar climate cases against the industry. “Whatever they decide to do in the Boulder case will have implications for these other cases,” Center for Climate Integrity’s Alyssa Johl explained.
Karen Sokol, professor of law at Loyola University New Orleans College of Law, cautioned that the Department of Justice’s brief may not have much sway given what appears to be an emboldened conservative majority on the Supreme Court.
“I don’t have confidence that the Solicitor General’s brief will matter a lot. I think this [Supreme Court] majority does what it wants,” Sokol said. “The Court has shown that it’s quite favorable to industry generally across multiple cases and multiple areas of law, and the fossil fuel industry in particular.”
In addition, at least two justices have ties to the oil industry writ large. Justice Amy Coney Barrett’s father was a Shell attorney for nearly three decades and served in leadership positions with the American Petroleum Institute, and Justice Samuel Alito owns stock in ConocoPhillips and Phillips 66 (Alito recused himself from the Baltimore case but Barrett did not).
In an emailed statement responding to the development in the Colorado case, Exxon criticized the tactic of climate litigation. “Lawsuits like this one do nothing but waste time and resources and, more importantly, don’t advance efforts to address climate change,” Exxon spokesperson Todd Spitler said. “While we’ll fight this, we’ll also continue devoting billions of dollars to meet today’s energy needs while leading the way in a thoughtful energy transition towards net zero carbon.”
Suncor did not immediately respond to a request for comment.