Supreme Court Hears Arguments on Procedural Question in Baltimore's Climate Accountability Case Against Fossil Fuel Companies
A lawsuit brought by the City of Baltimore against nearly two dozen fossil fuel companies seeking to hold them accountable for climate harms stemming from their products reached the Supreme Court bench this week. Although the Court was not hearing the case on its merits or substance, the Justices appeared somewhat skeptical of the procedural arguments offered by the fossil fuel defense.
In oral arguments Tuesday, Jan. 19 in the case BP et al. v. Mayor and City Council of Baltimore, the Supreme Court focused discussion on the highly technical procedural question before it. This question - regarding the scope of appellate review of orders remanding (or sending back) cases from federal to state courts - has important implications for U.S. litigation targeting fossil fuel producers for alleged campaigns of climate denial and deception.
In a strategic move to evade accountability, lawyers representing fossil fuel companies are trying to push climate accountability lawsuits, like the one filed by Baltimore, from state to federal courts where the cases are more likely to be dismissed. At the companies’ request, the Supreme Court is reviewing a decision issued by the Fourth Circuit Court of Appeals last year in Baltimore’s case sending that lawsuit back to state court.
During Tuesday’s hearing, the Supreme Court Justices raised several questions or concerns with the position presented by counsel for the fossil fuel companies. Specifically at issue is the interpretation of a statutory provision (28 USC §1447d) governing appellate review of remand orders – which are orders sending cases back to state courts. Fossil fuel industry lawyers (Petitioners in this case) argue for a broader interpretation allowing review of the entire remand order on appeal, including multiple grounds for federal jurisdiction beyond the specific grounds (civil rights & federal officer) referenced in the statute. Almost all federal circuit courts that have ruled on this question do not support this interpretation.
Concerns raised by the Justices during questioning of counsel for fossil fuel companies, Mr. Kannon Shanmugam, boil down to three main points:
While these issues are highly technical around statutory interpretation and rules of federal civil procedure, they have broader significance for climate accountability litigation against the fossil fuel industry. Should the Supreme Court side with the industry in this matter, it would effectively delay Baltimore’s case and similar climate accountability lawsuits from advancing in state courts, by reopening the federal appellate process to consider industry’s other arguments for federal jurisdiction. But the industry and its allies have urged the Supreme Court to go a step further and find that climate-related lawsuits must arise under federal [common] law, period. Industry lawyers have argued that, under
Supreme Court precedent established by AEP v Connecticut, the Clean Air Act prevents or displaces legal claims brought under federal law relating to interstate greenhouse gas emissions, and thus see establishing federal jurisdiction as key to barring such claims altogether. Subsequent precedent set in Utility Air Group v EPA makes clear that the CAA did not address all sources of greenhouse gases, leaving open the possibility that federal common law climate claims may remain viable against sources of greenhouse not regulated by the Act.
Justice Amy Coney Barrett seemed hesitant that the Court should go this far, suggesting in questioning fossil fuel industry counsel Mr. Shanmugam that “it would be fairly aggressive for us to resolve the federal common law question here.”
This did not deter the fossil fuel counsel from pressing this point about federal law, however. As Mr. Shanmugam argued on Tuesday: “This Court’s precedents dictate the common sense conclusion that federal law governs claims alleging injury caused by worldwide GHG emissions.”
The problem with this argument is that it mischaracterizes the actual claims asserted by Baltimore and other municipalities and states suing the fossil fuel industry over localized climate impacts. These impacts are exacerbated, plaintiffs say, by a decades-long campaign orchestrated by fossil fuel producers to downplay the dangers of their products. The tort or wrongdoing, as attorney Vic Sher, representing Baltimore, pointed out on Tuesday, is “fraud, deception, denial, and disinformation.” Traditionally such conduct falls under the province of state law.
A representative from the City of Baltimore’s law department referenced this deceptive conduct in a statement responding to the Supreme Court hearing. “It is time for the case to start moving,” said Sara Gross, Chief of Affirmative Litigation Division in the Baltimore City Department of Law. “In the two and half years since we filed this case in Maryland state court, defendants have done everything they can to delay and avoid accountability for their decades of deception about climate change while Baltimore continues to suffer the costs and consequences of their actions.”
The U.S. Supreme Court is scheduled to hear oral arguments tomorrow, January 19, in a lawsuit brought by the City of Baltimore against nearly two dozen fossil fuel companies seeking to hold them accountable for alleged deception regarding the climate damages of their products. But the hearing will not focus on the actual allegations or merits of the case; indeed, the companies are hoping the nation’s highest federal court will help them shut the door on this case and related litigation brought by state and local governments facing costly impacts stemming from the climate crisis like worsening floods, catastrophic storms, and deadly heat.
Baltimore – a coastal city with 60 miles of waterfront land threatened by rising seas – sued major energy companies like BP, Chevron, Shell and ExxonMobil in 2018 claiming that these companies’ deceptive business conduct obscured the dangers of fossil fuels and resulted in the dangerous climate consequences unfolding today. Baltimore is demanding the fossil fuel companies help pay for costs of adapting to climate impacts. The city brought its lawsuit under legal claims of nuisance, trespass, failure to warn, and violation of Maryland’s Consumer Protection Act – all state law claims.
The companies, however, say the lawsuit must arise under federal law and have waged a procedural battle trying to challenge the venue, with the aim to have a court decide the case belongs in federal, not state, court because that is where the cases are more likely to be dismissed. It is a strategy they have employed in all other climate accountability cases brought against them. And it initially worked, with two federal district judges tossing out cases brought by New York City and by San Francisco and Oakland (though the NYC case was initially filed in federal court).
Despite these initial wins for the oil companies, a handful of other federal judges have come to the opposite conclusion, deciding these kinds of climate cases about corporate deception belong in state courts. The companies challenged these rulings, and four federal appeals courts (the First Circuit, the Fourth Circuit, the Ninth Circuit and the Tenth Circuit) all rejected the companies’ appeals last year. The Fourth Circuit made its ruling last March in Baltimore’s case, and that is the ruling that the Supreme Court is taking up on a final appeal. Recently the oil industry lawyers lodged petitions requesting that the Supreme Court reverse the rulings from the three other appeals courts as well, but those petitions are on hold pending the Court’s decision in the Baltimore case.
The hearing will start at 11am ET on January 19, 2021 and is available to stream via C-Span.org.
More below on what is at stake, who the players are on the industry side and what they want, and why there is concern about one Supreme Court justice refusing to recuse from the case.
At Stake: The Direction of Climate Litigation Targeting Big Oil
The case before the Justices is strictly about procedure, not the substance of the litigation. A ruling in favor of the oil companies would give them the chance to return to the federal appeals court – in this case the Fourth Circuit – to make a host of other arguments for why the case should be transferred to federal courts and ultimately dismissed. That would effectively delay justice for the government plaintiffs by stalling the litigation from proceeding in state court until the appeal is finally resolved. There is a slight chance the Supreme Court could go even further and rule, as the oil companies have urged, that the Baltimore case and others like it belong in federal courts, period. This would land a possibly fatal blow to climate accountability lawsuits altogether – the ultimate goal of the lawyers representing the fossil fuel defendants.
Basically at stake is the issue of jurisdiction – whether Baltimore’s case and others like it belong in state courts, as multiple appeals courts have now ruled, or whether they must proceed in federal courts where they are likely to be dismissed. The technical question before the Supreme Court is a bit more nuanced and complex, but ultimately the battle at this point is over procedure and the direction or path ahead for climate accountability lawsuits.
As for the other pending petitions to the Supreme Court in similar climate lawsuits, the Court’s decision in Baltimore’s case would likely determine what happens with these cases. Currently the fossil fuel companies are challenging appellate rulings in cases brought by communities in Colorado and in California (Oakland/San Francisco plus a handful of municipalities led by San Mateo County), and by the state of Rhode Island. The challenge is the exact same as their petition in the Baltimore case.
As Vermont Law School law professor Patrick Parenteau explained: “Normally the Court considers each petition separately in the order they are filed but given that all of them share a common issue (scope of appeal of remand) it is likely that whatever decision is reached in Baltimore will apply to the others.”
Who is Backing Big Oil in this Battle, and What Do They Want?
Notably, the hearing will feature not only arguments from the industry lawyers, but also from the Acting Solicitor General of the United States. On the last day of the Trump administration, the outgoing president’s Justice Department will be in court helping to bolster the appeal made by the oil companies. Jeffrey B. Wall as Acting Solicitor General will have 10 minutes to argue in support of companies like Chevron and ExxonMobil.
Other friends or amici who filed briefs supporting Big Oil in this case include commercial trade associations like the American Petroleum Institute and National Association of Manufacturers, the U.S. Chamber of Commerce, conservative legal groups like Atlantic Legal Foundation and Washington Legal Foundation, a shady initiative helmed by lawyers tied to the coal industry called Energy Policy Advocates, a few retired military officers, a group called DRI - Voice of the Defense Bar, and a coalition of politically conservative states led by Indiana.
These backers of Big Oil ultimately want the companies whose products cause climate damages to evade any accountability whatsoever, and they are counting on the Supreme Court to help them with a decision that would delay or derail this litigation.
“Big Oil and their allies are asking the justices to bypass the narrow issue before them and instead issue a sweeping decision that would send all related climate damages cases to federal court. Since the oil defendants have repeatedly failed to win that argument in lower courts, this really feels like a Hail Mary pass to escape accountability,” Alyssa Johl, legal director with the Center for Climate Integrity, an initiative that supports holding polluters accountable for climate harms, previously said in a statement to DeSmog.
Justice Barrett Has Family Ties to Shell – and Won’t Recuse
Trump’s newest appointed Supreme Court Justice, Amy Coney Barrett, raised alarm among climate scientists, climate journalists and climate advocates during her Senate confirmation hearing in October when she refused to answer basic questions about her understanding of climate science, claiming the issue is a matter of “debate.” This debate over the science is part of the campaign of disinformation created by fossil fuel companies – and this campaign is at the heart of the climate lawsuits like the one brought by Baltimore.
Justice Barrett will be on the bench presiding over Baltimore’s case, but questions have arisen over whether she should participate in this case given that her father worked for Shell Oil as attorney for many years. Shell is one of the defendants in this case, and Barrett has a personal family connection to the company.
Justice Samuel Alito has already recused himself given he owns stock in some of the oil companies. And Justice Barrett had previously recused herself from cases involving Shell when she was a judge on the Seventh Circuit. But curiously she has not done so for the Baltimore case.
Some leading environmental groups have called on Justice Barrett to sit the case out, noting her clear conflict-of-interest.
“It’s well known that Justice Barrett’s father worked for decades as an attorney at Shell Oil, a named defendant in the case. He also played an active role in the American Petroleum Institute, the industry’s main U.S. lobby group, which is funded by numerous defendants in the Baltimore suit and has submitted an amicus curiae brief in support of their petition to the Supreme Court. These deep and long-standing conflicts of interest have led Justice Barrett to recuse herself from cases regarding Shell in the past,” said Kathy Mulvey, accountability campaign director in the Climate and Energy Program at Union of Concerned Scientists.
“Given her father’s long-term work for Shell and the American Petroleum Institute, Justice Barrett should recuse herself from this case and all future cases involving the oil industry,” added Kassie Siegel, director of the Climate Law Institute at the Center for Biological Diversity.
Although President-elect Joe Biden will be sworn in the following day, President Trump’s influence will be on display Tuesday with his Justice Department participating in arguments and his newest Supreme Court Justice participating in the proceeding.
Environmental groups and a coalition of states led by Democratic attorneys general are suing the outgoing Trump administration over a new rule that they say fail to effectively regulate carbon pollution from airplanes. The petitioning groups and states are slamming the new regulations as “insufficient” and “do nothing” standards because the rule essentially require zero emissions reduction, do not apply to in-service aircraft and exempt new in-production airplanes until 2028.
“The aviation industry is a significant source of greenhouse gas emissions, yet the EPA has set standards here that are the equivalent of doing nothing,” California Attorney General Becerra said in a press release. California along with the California Air Resources Board (a state agency) is leading a coalition of 12 states plus the District of Columbia in challenging the airplane standards.
“Many aircraft already meet this standard and even U.S. EPA admits it is unlikely to actually reduce greenhouse gas emissions,” said CARB Executive Officer Richard W. Corey. “These standards are far too weak to accelerate investment in more fuel-efficient aircraft and engines, and they lag existing aircraft technologies by more than a decade. The projected growth of aviation GHG emissions requires standards that are informed by science and robust analysis which unfortunately are principles the current administration continues to ignore.”
The Environmental Protection Agency (EPA) finalized the aviation standards in late December 2020, ten years after environmental organizations initially sued the agency to force it to regulate climate pollution from airplanes. EPA issued an endangerment finding for aircraft under the Clean Air Act in 2016, initiating the rulemaking process that culminated in the first-ever greenhouse gas (GHG) emission standards for planes.
But these standards fall behind existing technology by more than ten years and won’t apply to new planes until 2028, at which point EPA expects all airplanes to already comply with the standards or be phased out. “As a result, the agency doesn’t project any emissions reductions from the rule,” Earthjustice explained in a press release.
Earthjustice is leading the legal challenge on behalf of the Friends of the Earth and Sierra Club, along with the Center for Biological Diversity. The environmental groups are petitioning for review of the rule in the U.S. Court of Appeals for the District of Columbia Circuit. Separately, the coalition of a dozen states and DC filed a lawsuit challenging the rule. The states argue EPA was “arbitrary and capricious” in enacting a rule that fails to reduce emissions beyond business-as-usual, lags existing technology by a decade, and fails to consider effective alternatives. The states suing EPA over the emissions rule for airplanes include Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Vermont, and Washington.
“The United States produces more than one quarter of all global aviation emissions—a serious threat to our climate that this rule seeks to cement rather than address,” said Connecticut Attorney General William Tong. “For four years, the Trump Administration recklessly sought to eviscerate and undermine every facet of our environmental protections. This rule is yet another unlawful effort to lock in their dangerous pro-fossil fuel agenda on their way out the door, and we won’t allow it.”
“This standard fails to reduce emissions from aircraft and represents a missed opportunity to address climate change,” Sarah Burt, deputy managing attorney of Earthjustice’s International Program, said in a press release. “The Clean Air Act clearly establishes an obligation to reduce emissions of harmful pollutants that endanger public health and welfare. Our petition asks the D.C. Circuit to hold EPA to this obligation to work toward a future where our transportation systems no longer contribute to a warming world.”
French "Case of the Century," Alleging France is Falling short on Climate Action, Comes Before Administrative Court in Key Hearing
* UPDATE (1/16/21) – France is at fault and could indeed be held responsible for failing to take sufficient climate action, the public rapporteur (an independent advisor to the court) concluded. This finding is an important step towards climate justice in France.
As the coalition of environmental and human rights groups bringing the legal case explained: “ If the court follows the conclusions of the public rapporteur, the responsibility of the French State in climate change would be recognized because of the insufficiency of its actions. This would be a historic breakthrough in French law and a major victory for the climate and for the protection of everyone in the face of the consequences of climate change. All victims of climate change could then rely on this jurisprudence to assert their rights and obtain redress. The State would then come under strong pressure to finally implement the necessary actions to limit warming to 1.5 ° C.”
During the hearing on January 14, Amélie Fort-Besnard, the public rapporteur, advised the court to find France at fault for not taking all necessary measures to meet its climate commitments. But rather than issue an order for additional measures, she recommended the court wait to allow time for the two sides in this case to engage in discussion, as well as for the Council of State to hand down its decision in a related climate lawsuit brought against the French State by the community of Grand-Synthe.
Additionally, the public rapporteur recommended the administrative court recognize ecological damage as a valid cause of action, which would be a major breakthrough in environmental law. According to Oxfam France (via English translation): “This recognition of ecological damage by an administrative authority means that a public person, like a private person, can be held liable for damage caused directly to the environment. For the public rapporteur, climate change is causing such damage and the State can be held responsible for it, because of the insufficient actions taken to fight against it.”
Four environmental organizations are facing off in court today, January 14, against the French state in a climate case alleging France is not taking adequate action on the climate crisis to protect the rights of French citizens.
Dubbed “Affaire du Siècle” or “Case of the Century,” the lawsuit is part of a growing wave of litigation worldwide challenging government policies and responses to the climate emergency. The French case comes before the Administrative Court of Paris, the city where the world convened in December 2015 to adopt the landmark international agreement recognizing the imperative to limit warming to well below 2 degrees C.
Five years later the nations of the world are largely not on a path to achieving this target. Only Morocco and Gambia are projected to meet the 1.5 degree C threshold under current policies, according to Climate Action Tracker, with France and the rest of the European Union deemed “insufficient,” meaning on track for up to 3 degrees C of warming in violation of the Paris Agreement.
It is in this context that the Case of the Century arises before the French judiciary. Led by an organization called Notre Affaire à Tous in partnership with Greenpeace France, Oxfam France and Fondation pour la Nature et l’Homme, the case has garnered support from over 2 million people and seeks to compel France to take all necessary measures to slash greenhouse gas (GHG) emissions consistent with the 1.5 C threshold.
Specifically, according to a summary of the case from the Sabin Center’s climate litigation database, the plaintiffs are also requesting an order that France “take, at least, all necessary measures to achieve France's targets for reducing greenhouse gas emissions, developing renewable energies and increasing energy efficiency; take the necessary measures to adapt the national territory to the effects of climate change; take the necessary measures to protect citizens’ lives and health from the risks of climate change.”
The case alleges that France is in breach of its duties under domestic and international law, such as the French Charter for the Environment and the European Convention on Human Rights. The four organizations launched their legal campaign in 2018 and submitted their summary request (filed their lawsuit) to the Administrative Court in March 2019.
On January 14 the court is taking up the case in a hearing. Both sides will present their arguments, and the public rapporteur will offer the judges his recommendations. The role of this public rapporteur is to provide the hearing with an independent opinion on the questions involved in the case. A decision from the court is then expected in approximately two weeks, by the end of January.
The French environmental organizations say they are encouraged by a ruling in November 2020 from France’s highest administrative court (the Council of State) ordering France to justify that it is meeting its climate goals without more ambitious policies. That ruling came in a separate lawsuit brought against France by the coastal community of Grande-Synthe, which is facing climate impacts like extreme flooding and rising seas.
In a post on its website (translated to English) describing the case and the Jan. 14 hearing, the Fondation pour la Nature et l’Homme called this day in court a “decisive day for climate justice,” one where “justice could finally force the State to respect its commitments to fight against climate change.”
Exxon Doubles Its Defense, Urges Mass. State Court to Toss Mass. Attorney General's Climate Fraud Case with Two Motions to Dismiss
ExxonMobil is pushing back, and trying to play the victim card, in response to a climate change accountability lawsuit filed in October 2019 by the Massachusetts attorney general alleging investor and consumer fraud over the oil major’s statements and advertising pertaining to its fossil fuel products and their impacts on the climate system.
Massachusetts Attorney General Maura Healey sued ExxonMobil on October 24, 2019 for allegedly misleading investors and consumers on climate risks of Exxon’s business and products – including systemic risks to the economy – in violation of Massachusetts’ consumer protection statute. The complaint includes allegations of failing to disclose climate-related risks to Exxon’s business to investors, deceptive marketing of certain Exxon products as environmentally friendly to consumers, and ongoing misleading or greenwashed advertising of the company to obscure Exxon’s harmful environmental and climate impact. It is just one of almost two dozen lawsuits targeting Exxon and similar petroleum giants for deceptive behavior on the climate consequences of their products to protect their business interests.
Most of these lawsuits are tied up in jurisdictional battles over whether they belong in state or federal courts. Exxon tried unsuccessfully to boot the Massachusetts lawsuit to federal court, and now it is aiming to get it tossed out of Massachusetts state court.
Last summer the company filed two motions to dismiss AG Healey’s suit in Suffolk County Superior Court. These filings, and the Attorney General’s response, were made public in December 2020. Exxon also filed replies in December supporting its two motions.
The oil major is not only pushing back with a standard motion to dismiss, but is complaining that its protected speech or “petitioning rights” are unlawfully targeted by the lawsuit. In other words, Exxon is playing the victim card and demanding the court dismiss the lawsuit under an anti-SLAPP action. SLAPP refers to “Strategic Litigation Against Public Participation” and anti-SLAPP laws are intended to protect against lawsuits quelling free speech.
Exxon filed a special motion to dismiss under the Massachusetts anti-SLAPP statute on July 30, 2020. In its motion, Exxon argues that the Mass. AG lawsuit amounts to “lawfare,” and is an attempt to squash political opponents who do not share the Commonwealth’s views on climate change.
“Those, like ExxonMobil, who decline to parrot the Attorney General’s call for an immediate transition to renewable energy are not simply diverse viewpoints in a public debate with state, federal, and global policy implications, but targets who must be silenced through ‘lawfare,’” Exxon attorneys write.
Exxon also alleges that the Attorney General “conspired” with private interests like environmental activists and attorneys to bring this litigation, and that the real objective is to impose the AG’s preferred “views” and policies on climate. In essence, Exxon argues that the AG’s allegations concern policy disagreements, not deceptive or fraudulent conduct. According to Exxon, the “Attorney General brought this suit to advance its preferred climate policies by silencing perceived political opponents.”
In its regular motion to dismiss filed on August 5, 2020, Exxon takes a number of shots at the Mass. AG lawsuit, claiming: “The Attorney General seeks headlines, not solutions,” and insisting the “Attorney General may not use a civil lawsuit to make ExxonMobil its political scapegoat.” Exxon also points the finger at Massachusetts for being “as dependent on fossil fuel as ever” while simultaneously defending fossil fuels as a “lawful product that is essential to modern life.” Furthermore, Exxon argues it does not sell gas directly to Massachusetts consumers and that its retail gas stations are “independently owned” and operated through a Brand Fee Agreement.
According to Exxon, the lawsuit must be dismissed due to lack of personal jurisdiction, failure to state a claim, and violations of the Constitution. Exxon says that its allegedly misleading claims did not specifically target Massachusetts, and that its commercial speech is protected under the First Amendment.
Attorney General Healey, however, told the court in filings on Oct. 30, 2020 opposing Exxon’s motions that this is simply not the case. The First Amendment “simply does not protect fraudulent and deceptive speech,” the AG explains.
Massachusetts says that Exxon’s deception and climate denial “continues to this day.”
“But like the tobacco industry before it, ExxonMobil has engaged in a cover-up,” the AG brief explains. The brief recalls many of the allegations asserted in the complaint. The AG also argued that Exxon’s anti-SLAPP action should be dismissed, as allowing it would interfere with traditional state law enforcement authority and because Exxon has not demonstrated that its deceptive conduct constitutes free speech.
Hearings on one or both of Exxon’s motions to dismiss could be scheduled in the coming months.
The city of Baltimore and its supporters in litigation against the fossil fuel industry over climate damages are pushing back against industry arguments in oil companies’ appeal before the Supreme Court. The Supreme Court will hear the case on January 19, 2021.
In recent briefs submitted in December to the Court, Baltimore and its backers, or amici, argue that the oil companies like Chevron, BP, and ExxonMobil are exploiting a narrow statutory provision that allows for federal appeals courts to review federal court decisions – called remand orders – sending a case back to its state court origins. Baltimore and a coalition of state and local government groups specifically call out this exploitation as “gamesmanship” in their briefs.
The issue before the Supreme Court is technically a very wonky one regarding a question of federal civil procedure, namely the scope of appeals courts’ review of remand orders as outlined in a statutory provision (USC § 1447d). However, the oil companies being sued by Baltimore – and the companies’ backers or amici – are urging the Supreme Court to issue a sweeping decision beyond this specific question that would essentially determine that all climate-related lawsuits necessarily belong in federal courts where they must then be dismissed. Baltimore’s climate lawsuit, and others like it brought by states and municipalities against fossil fuel companies, have been tied up in procedural wrangling over this federal vs. state court issue.
This wrangling has caused considerable delay in the litigation, which seeks to hold fossil fuel companies liable for alleged deception and disinformation campaigns on the dangers of their products to the climate system.
In a climate liability case similar to Baltimore’s brought by several Colorado municipalities, for example, the battle over federal vs. state court jurisdiction has dragged out for a year and half already. The Colorado communities - the city and county of Boulder and San Miguel County – are suing Exxon and Suncor entities to hold them accountable for climate disinformation and damage. These communities submitted a brief backing Baltimore. Their brief notes that the oil company defendants in their lawsuit have recently filed a petition to the Supreme Court (filed December 8, 2020) seeking the same appeal and relief that the companies seek in the Baltimore case. The Colorado brief also says that the companies’ appeal is disingenuous because their end game is to avoid accountability in court altogether; as the brief puts it, the companies are “setting up a game of three-card Monte, where they simply can never be sued.”
Another amicus or supporting brief backing Baltimore came from 20 attorneys general (all Democrats) from 19 states plus the District of Columbia. A handful of these AGs have brought lawsuits of their own against the oil companies over the alleged deception and fraudulent conduct, all under state law claims such as consumer protection statutes that have no relevance to federal law or federal interests. “Like Baltimore in this case, States have sought to enforce their own laws by bringing lawsuits under state law in state courts against fossil-fuel companies for their decades-long campaigns to conceal their knowledge of climate change and the central role their products play in causing climate change,” the AGs note in their brief.
The states’ brief also explains how this Supreme Court appeal and procedural wrangling in climate cases needlessly delays the litigation. “These delays defer desperately needed relief,” the brief argues. “Baltimore, Rhode Island, and similar plaintiffs brought these actions at the time that they did because state and local governments are incurring costs from climate change effects now…But defendants have been able to delay any reckoning by endlessly litigating threshold removal questions. It should not take three years to determine which court should hear a case.”
The attorneys general supporting Baltimore in this appeal represent Rhode Island, New York, California, Connecticut, Delaware, DC, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Virginia, and Washington. Another group of states with Republican attorneys general are backing the oil companies.
The U.S. federal government under the outgoing Trump administration is also supporting the companies, as are a handful of fossil fuel industry trade associations and allies like the American Petroleum Institute, the National Association of Manufacturers, and the U.S. Chamber of Commerce.
But one brief backing Baltimore, submitted by six U.S. Senators (all Democrats), calls out these friends of Big Oil. As the senators explain, these groups are tied to fossil fuel funding and interests and have helped block policy action on climate; yet these groups and the oil companies aim to deprive communities of pursing climate-related actions in courts in favor of political forums where they have undue influence. “They ultimately wish to steer all such [climate] matters into the executive and legislative branches, where they have maintained a decades-long political blockade,” the senators write in their brief.
The six senators backing Baltimore include Ben Cardin and Chris Van Hollen of Maryland; Elizabeth Warren and Ed Markey of Massachusetts; and Sheldon Whitehouse of Rhode Island and Richard Blumenthal of Connecticut. “We see this gambit, joined by fossil fuel-connected amici, as part of a continuing effort to block progress on addressing climate change,” they argue.
Additional amici briefs backing Baltimore came from a group of civil procedure and federal court scholars, from a coalition of state and local government organizations such as the U.S. Conference of Mayors and the Council of State Governments, and from environmental groups Chesapeake Bay Foundation and the Natural Resources Defense Council.
The Supreme Court has set oral argument for January 19, 2021. A ruling in favor of the oil companies – a real possibility given the conservative majority of the court – could either reopen the federal appeals courts’ review of remand orders in Baltimore’s case (and likely a few other climate cases like it), or could go further and determine that all climate liability litigation must be brought in federal courts under federal common law, which is the outcome that the oil companies and their allies most desire. A previous Supreme Court decision from a decade ago set a precedent that climate change lawsuits brought under federal common law must be thrown out.
The UK Supreme Court ruled this month in favor of Heathrow International Airport in a case challenging the airport’s third runway expansion project on climate change grounds. British environmental law charity Plan B – one of the plaintiffs in this case – called the ruling a “betrayal” to young people and the Global South who are most vulnerable to climate change impacts. Plan B director Tim Crosland broke the court’s embargo on the verdict by announcing it a day ahead of schedule as an act of civil disobedience.
The Supreme Court ruling, issued December 16, 2020, overturns a Court of Appeal decision earlier this year to invalidate the third runway project. The appeals court ruled on February 27, 2020 that the Secretary of State for Transport, Chris Grayling, did not take into account the Paris Agreement goals in the national policy supporting the airport expansion. The UK government accepted this ruling, but two private parties with stakes in airport expansion (including Heathrow Airport Limited) did not and they appealed to the Supreme Court. In its verdict, the Supreme Court determined that the Paris Agreement is not official government policy and that no legal obligations were breached in considering airport expansion.
Environmental groups Plan B and Friends of the Earth first brought the climate lawsuit against the UK government over the Heathrow expansion in 2018, alleging violations of UK statutory law and the Paris Agreement. Plan B argued that the Transport Secretary failed to consider the more ambitious Paris Agreement objective to limit warming to 1.5 degrees C in approving the runway expansion. The government’s initial 2050 climate target was based on a 2 degree C warming limit, though the Paris Agreement (adopted in 2015) aims to limit warming to well below 2 degrees C.
“The Supreme Court’s judgment, which has legitimised Mr. Grayling’s use of the deadly 2˚C threshold, has betrayed us all,” Plan B’s Tim Crosland said in a press statement reacting to the December 16 verdict.
Plan B says it will continue to challenge the airport expansion by taking its case to the European Court of Human Rights. That international court, based in Strasbourg, France, currently has two other climate change lawsuits pending.
Furthermore, the airport expansion could face additional legal challenges going forward in the planning stage. As Plan B explained in an emailed statement: “Before work can progress Heathrow Airport Limited will need to obtain a ‘Development Consent Order,’ which is subject to a further legal challenge. As the Supreme Court made clear, that process would need to consider current climate obligations, including the UK's net zero by 2050 target. Heathrow expansion implies 40 million tonnes of CO2 from UK aviation by 2050, so that’s an obvious problem.”
Friends of the Earth said they would also continue to challenge the airport expansion in the planning process.
“This judgment is no ‘green light’ for expansion,” said Will Rundle, head of legal at Friends of the Earth. “It makes clear that full climate considerations remain to be addressed and resolved at the planning stage. Heathrow expansion remains very far from certain and we now look forward to stopping the third runway in the planning arena."
"Disappointing" Decision from Norway's Supreme Court in Climate Lawsuit Challenging Arctic Offshore Oil Licenses
Story originally published by DeSmog
Norway’s Supreme Court on Tuesday ruled not to overturn the Norwegian government’s approval of new licenses for offshore oil drilling in the fragile Arctic region.
The ruling – a culmination of four years of high-profile litigation in a case challenging continued fossil fuel production on climate change grounds — came as a big disappointment, and even outrage, for environmental and climate activists in Norway and internationally.
“We are outraged with this judgment, which leaves youth and future generations without Constitutional protection. The Supreme Court chooses loyalty to Norwegian oil over our rights to a liveable future,” Therese Hugstmyr Woie, head of a youth-led environmental organization called Young Friends of the Earth Norway, said in a press release.
“I am disappointed and outraged by the fact that the Norwegian constitution doesn't provide me and my peers with judicial protection from politicians stealing our future,” Andreas Randøy, deputy head of Young Friends of the Earth Norway, told DeSmog in an emailed statement. “I wasn't old enough to vote out the politicians who opened up for new oil drilling in the arctic, further north than ever before. Yet I am a part of the generation who has to deal with its consequences. I really thought the Supreme Court would value that to a greater extent.”
Young Friends of the Earth Norway and Greenpeace Norway sued the Norwegian government in 2016 over the government’s granting of new offshore oil licenses in the Barents Sea. The environmental organizations argued permitting new oil drilling is incompatible with the Paris Agreement goal to limit global warming to well below 2 degrees Celsius and constitutes a violation of section 112 of Norway’s constitution that outlines a right to a healthy environment.
The lawsuit sought a court order to invalidate the oil licenses based on this constitutional provision, and considering that climate science dictates that the vast majority of fossil fuels be left in the ground to avoid the most catastrophic levels of warming. The United Nations Special Rapporteur on Human Rights and the Environment David Boyd supported the lawsuit and warned that Norway’s continued oil production during a time of climate emergency amounts to a violation of human rights.
The Norwegian courts ultimately disagreed that rights had been violated. The Oslo District Court initially determined in January 2018 that there was no constitutional violation stemming from the government’s grant of new oil licenses. On appeal, a Norwegian appeals court upheld this ruling in January this year, though the appeals court did decide that the Norwegian government should be responsible for the carbon emissions tied to its petroleum exports.
The Supreme Court of Norway took up the case this year on another appeal, with hearings held in November. The court issued its decision on December 22, ruling 11-4 in favor of the government and against the environmental organizations. The four dissenting judges found the government had made procedural errors in its oil licensing decision, according to Greenpeace Norway.
The leader of Greenpeace Norway, one of the organizational plaintiffs in this case, said the Supreme Court ruling is disappointing and that the plaintiffs are looking at other avenues to continue making their case.
“It is absurd that our right to a liveable environment cannot be used to stop Norway’s most harmful activities for our climate and environment,” said Frode Pleym, head of Greenpeace Norway. “We will now consider all possibilities to stop this harmful industry, including an application to the European Court of Human Rights.”
“This Should Be a Warning to the Oil Industry”
Although the Norwegian Supreme Court declined to overturn the grant of oil licenses in this instance, the ruling did acknowledge that Norwegian authorities may have a duty to deny oil companies’ permits to actually produce the oil given the constitutional right to a healthy environment.
In other words, as Carroll Muffett, president of the Center for International Environmental Law explained to DeSmog, the court concluded there is a distinction between oil exploration and oil production.
“Here’s the part that is the worst possible news for oil companies. The court actually emphasized that simply finding oil under authority of an exploration license doesn’t give any company any guarantee that they’ll be permitted to produce the oil,” Muffett said.
“There’s a real missed opportunity on the part of the court in moving the law of human rights and the rights of future generations forward in this decision,” he added. “And at the same time when you look at the practical impacts of this decision, what the decision says for industry is you’re welcome to go and invest massive amounts of money in exploring for new oil if you want, but the critical question government is going to have to ask is can you produce it if it is contributing to climate change?”
Muffett said the ruling will also increase pressure for Norway’s political leadership to listen to their citizens and consider following Denmark’s lead in halting new oil and gas exploration and production. A recent opinion poll in Norway found that a majority of Norwegian citizens agree that oil exploration in the Arctic should be stopped for climate and environmental reasons.
“The Court has let the government off the hook at this time, but leaves the door open for an assessment on climate impacts, including emissions after export, at the later production stage,” said Greenpeace Norway’s Frode Pleym. “This should be a warning to the oil industry. At this moment in history, no oil producing country holds a credible position on climate without ending exploration for new oil and setting a plan for retiring the industry.”
Story originally published by DeSmog
This year -- with its converging crises, from the coronavirus pandemic to longstanding racial injustice to climate-related disasters -- was also a remarkably active time for climate litigation. All around the world, communities, organizations, and especially young people turned to the courts in 2020 in strategic attempts to hold governments and polluting companies accountable for exacerbating the unfolding climate emergency.
In particular, this year saw a notable uptick in climate accountability litigation with multiple new cases filed in the U.S. and internationally.
“This extremely challenging year has made clear that people and the planet must come first,” Kristin Casper, general counsel with Greenpeace International, told DeSmog in an emailed statement. “Many are taking action to make it a reality by bringing their demands for climate justice to the courts.”
“We’re seeing climate litigation spring up all over the world. Advocates in many countries are finding it a very useful tactic,” said Michael Gerrard, environmental law professor at Columbia Law School and founder and faculty director of Columbia’s Sabin Center for Climate Change Law.
Over the years there have been more than 1,500 climate-related cases in 37 countries, according to a report on climate litigation trends released this summer. And a new wave of cases in recent years has made it clear that courts are emerging as a critical battleground in the climate fight.
New Lawsuits Launched
This year was notable for the number of new climate cases brought to the courts. At least 20 new cases were filed around the world against governments and fossil fuel companies.
In January, a group of young people in Germany filed a constitutional lawsuit against the German government challenging the country's climate policy as insufficient to protect the rights of young German citizens. These kinds of rights-based climate lawsuits are increasingly being waged by youths against their governments. In March for example, two new youth climate cases were filed -- one in South Korea and one in the state of Montana. The latest youth-led case came just this month, with the announcement on the five year anniversary of the Paris Agreement that three young British citizens are taking legal action against the UK government for failing to develop an emergency plan to tackle the climate crisis.
The number of cases brought by young people around the world reached a peak this past September. New youth climate lawsuits launched in Australia against a coal mine expansion, in Mexico against the Mexican government, and in Europe with six Portuguese youths targeting 33 European nations in a landmark human rights case.
September 2020 also saw four new climate accountability lawsuits filed by U.S. cities and states against major fossil fuel firms. The cities of Hoboken, New Jersey, and Charleston, South Carolina, as well as the states of Delaware and Connecticut all brought litigation against ExxonMobil and other such companies for alleged deception and disinformation campaigns that have worsened the climate change problem and resulted in catastrophic and costly consequences such as extreme flooding, monstrous storms, king tides, and scorching heat.
“Every person on the planet is affected by climate change and many communities are already experiencing its repercussions. Fossil fuel companies, who for years lied to the public about the damages their products cause, have so far evaded accountability. The coming together of these two streams -- the worsening impacts of climate change and the revelation that fossil fuel companies recognized this internally but misrepresented it publicly -- is driving this powerful wave of climate litigation,” said Marco Simons, EarthRights International general counsel. EarthRights International is providing legal representation in a climate lawsuit brought by several Colorado communities against petroleum firms ExxonMobil and Suncor.
Additionally, new cases against Big Oil came this year out of Hawaii -- with Honolulu suing in March and Maui following with a lawsuit in October. And in Minnesota and Washington, D.C., the two attorneys general filed back-to-back consumer protection cases in June. A case was also brought in D.C. against Exxon by an environmental group called Beyond Pesticides targeting Exxon’s advertising as deceptive greenwashing.
According to one law professor who is closely following these lawsuits, the pressure that new cases exert on the industry is important to help break through the industry-supported narrative on climate change. “This crisis is human caused, and a big part of that human cause was the systematic disinformation campaign,” said Karen Sokol, law professor at Loyola University College of Law in New Orleans. These lawsuits help remind the public of the fossil fuel companies' involvement in that disinformation, she said.
“These lawsuits have the potential to play a significant role in informing our public discourse as we go forward in responding to the climate crisis,” she added. “A critical part of that, given industry’s role, is understanding the nature of their disinformation campaigns and freeing ourselves, our democratic discourse, from their pollution of it.”
Along with the flurry of new lawsuits filed this year, there have been some setbacks for activists and plaintiffs seeking climate justice and accountability.
The cases against the so-called “carbon majors” in the U.S. have been bogged down in procedural battles, with the fossil fuel industry fighting to move the cases to federal courts while the local government plaintiffs argue their cases belong in state courts. And while there were some notable procedural wins for the plaintiffs this year in this battle -- with four federal appeals courts ruling in four different cases that the litigation should proceed in state courts, where the plaintiff may stand a better shot at winning -- this momentum screeched to a halt when the U.S. Supreme Court agreed in early October to intervene in one of the cases at the industry’s request.
The Supreme Court is supposed to be ruling on a very technical procedural question, but the oil companies and their allies ultimately want the highest federal court in the land to determine that the accountability lawsuit filed by Baltimore -- and others like it -- has no place in state courts but rather must be tossed out by federal courts, arguing that federal law preempts state and local law in all matters relating to global warming.
The Supreme Court, particularly given its new politically conservative makeup, could potentially issue this broader ruling to the favor of the petroleum corporations. At the very least the Supreme Court’s intervention means the climate accountability lawsuits will be delayed from proceeding towards discovery and trial.
“I think it’s likely some or all of those cases will be delayed until the Supreme Court acts. We don’t know how that will turn out, whether the Supreme Court will rule narrowly or broadly,” the Sabin Center’s Michael Gerrard said.
“The fossil companies have tried to move these cases to federal courts, delaying justice for plaintiffs. Communities are realizing that it’s not fair for them to pick up the tab on the costs of climate change, particularly when fossil fuel companies continue to profit from it,” added EarthRights International’s Marco Simons.
Other setbacks this year came in some of the youth climate cases against governments, with U.S. courts in particular declining to rule in favor of young people. But several of these decisions included dissents, where one judge decided to go against the majority rule and issued a written statement supporting the idea that young people should have their day in court.
This was what happened, for example, in the landmark youth climate lawsuit against the U.S. federal government, Juliana v. United States. In January this year a divided federal appeals court ruled 2-1 to dismiss the case before it could go to trial. But the ruling came with a scathing dissent written by Judge Josephine Staton warning that the court majority seems to be content with allowing the U.S. government to “walk the Nation over a cliff” in terms of its failure to address the climate emergency.
Then, in October, the Oregon Supreme Court similarly issued a divided ruling where the majority ruled against the young people suing the state of Oregon over climate and environmental destruction, but one judge departed from this ruling and issued a dissent saying that the court should play a role in addressing climate harms.
“I think seeing those dissenting opinions are very important, and I would chalk those up to part of the success column,” said Andrea Rodgers, a senior litigation attorney with the nonprofit law firm Our Children’s Trust. Rodgers helps represent the youth plaintiffs in some of these cases.
“Some U.S. courts and judges are struggling with [the question of] what is the role of courts in the climate crisis. So I think we’re seeing judges in the U.S. really wrestling with that concept,” she said. A court in Florida, for example, ruled in June this year to dismiss a youth climate lawsuit filed against the Florida state government. The Florida youth plaintiffs are appealing this ruling.
And in Canada, a federal court ruled in late October to dismiss a constitutional youth climate lawsuit against the Canadian federal government. That case is the Canadian equivalent of the Juliana v. U.S. case. The Canadian youths are also appealing.
Advances and Successes
Despite these setbacks, there have been notable advances and successes for climate activists coming from the courts this year.
In November, a court in Ontario, Canada, decided to allow a case brought by young people against the Ontario provincial government to proceed towards trial. Also in November, the European Court of Human Rights announced it would be “fast-tracking” the landmark case filed in September by six Portuguese youths against 33 European nation — which now have to respond to the allegations that they are not meeting their legal obligations to rapidly slash carbon emissions in a manner that is protective of human rights.
Rodgers described this as “very unusual and exciting” outcome. She also pointed to Ireland's Supreme Court decision in late July to invalidate the climate change plan the government had created; the court found it “just insufficient and not adequately protective of the rights of Irish citizens,” Rodgers said. That was a particularly important win for climate campaigners in Ireland pushing for more ambitious climate policy.
Another historic ruling came out of France in November where the nation’s highest-level administrative court ruled that the French government must demonstrate how it plans to meet its climate targets absent stronger emissions cuts. That ruling came in a lawsuit brought by the community of Grande-Synthe, a coastal town in northern France.
“You’re starting to see courts that are really getting ready to call governments to task,” Rodgers said. “I think we’ll start seeing more and more courts willing to hold governments accountable.”
The Supreme Court of Norway, for example, is expected on December 22 to issue a historic judgment holding the Norwegian government accountable, in a case brought by environmental organizations seeking to overturn the government's licensing of offshore petroleum drilling in the Arctic. [Update: On December 22 the court issued its decision, which did not hold the government accountable and came as a disappointment to environmental campaigners.]
Given all this activity in the courts in 2020, the coming year will likely also be a busy one in terms of climate lawsuits.
“There will certainly be no shortage of action on the climate litigation front,” Rodgers said.
On January 19, 2021 -- just one day before President-elect Joe Biden is sworn in -- the U.S. Supreme Court will hold the hearing on the procedural issues in Baltimore’s climate accountability case. That is certainly one case to watch, as it will have implications for the more than a dozen other ongoing lawsuits against Big Oil in the U.S.
The Juliana youth climate case against the U.S. government is also not entirely over. A decision is expected anytime now on the youth plaintiffs’ request for the full appeals court (rather than a three-judge panel) to reconsider their case. Should the appeals court reject that request, the youth may take their case to the U.S. Supreme Court. They also may invite the new Biden administration -- as the new defendant -- to reach a settlement.
Internationally, there looks to be quite a lot of climate litigation happenings in 2021 as well. According to Rodgers, hearings are expected in youth climate cases in Uganda, Mexico, and Canada. The European Court of Human Rights is taking up the Portuguese youth case, and it has an additional climate case pending, brought to the court recently by a group of senior women from Switzerland with support from Greenpeace International.
“Greenpeace International is committed to growing and strengthening climate litigation by supporting communities in securing even more victories in 2021 and beyond,” said Greenpeace International’s Kristin Casper. The organization is supporting multiple climate lawsuits around the world. “We will continue to fight injustice and take action for human survival in and out of the courts.”
Rodgers added that this is a critically important time for the courts to be playing their role in holding governments and polluters accountable: “Climate change litigators are hopeful for a breakthrough, and the time for court involvement is now.”
In groundbreaking climate case, 17,000 Dutch citizens and several environmental groups have asked the HaGUE to rule that Europe's biggest oil-and-gas firm must abide by the Paris accord's goals.
Story originally published by Drilled News
Five years after nearly 200 nations adopted the Paris climate agreement, a coalition of seven Dutch environmental group and more than 17,000 co-plaintiffs are facing off in civil court at The Hague against Royal Dutch Shell for continuing to do business in ways that undermine the pact’s goal to limit global temperature rise to well below 2 degrees C (3.6 degrees F).
If they win, the plaintiffs say, the decision will establish that Shell is responsible under both the Paris pact and human rights law to rapidly reorient its business away from oil and gas production.
The plaintiffs in the case, Milieudefensie v. Royal Dutch Shell, specifically claim that Shell — the largest oil corporation in Europe and among the top five largest in the world — has breached the “duty of care,” a principle enshrined in Dutch law, and violated Articles 2 and 8 of the European Convention on Human Rights, which protect the rights to life and to private and family life. They are seeking a court order compelling Shell to reduce its carbon emissions 45% by 2030 and completely by 2050, in alignment with the Paris accord.
“Success is Shell being forced by the court to accept binding CO2 targets reflecting the Paris climate agreement,” said Donald Pols, director of Milieudefensie/Friends of the Earth Netherlands, the environmental organization leading the case.
The case, which has been conducted over four hearings since Dec. 1, could also have reverberations throughout the fossil fuel industry.
“While it is taking place in the Netherlands under Dutch law, the implications go much wider,” said Sara Shaw, the coordinator of climate and energy campaigns at Friends of the Earth International. “Our hope is that this case sparks a wave of climate litigation globally that can hold other carbon majors to account and help bring about the end of the fossil fuel age.”
This case, which was first filed in 2019, builds upon an historic climate lawsuit brought by the Urgenda Foundation and Dutch citizens, in which the Dutch Supreme Court ruled that the national government was accountable to making more stringent emissions cuts. This decision set an important legal precedent in finding that failure to rapidly rein in carbon emissions constitutes a human rights violation.
Anne Hellendoorn, a 17-year-old environmental science student and one of the thousands of Dutch citizens who signed on to the current case, said she hopes it will make Shell realize that “they can actually be held accountable” for their business conduct.
“Shell must stop finding all these new fossil fuel reservoirs and destroy the nature around it, and start finding renewable alternatives,” she said.
Shell, which is headquartered in the Netherlands, is claiming both in and outside of court that it is aiming to meet the Paris goals “in step with society.” Shell touts on its website and in social media advertising what it calls its “climate ambition” to achieve net-zero carbon emissions across its business by 2050.
A Shell spokesperson said that the company “is playing its part” in addressing climate change, and arguing in court that when consumers and national governments lead the push to slash carbon emissions, Shell will follow.
Shell’s spokesperson pointed to “effective policy, investment in technology and changing customer behavior” as the key pieces for accelerating the world’s transition to cleaner energy in time to meet Paris targets, rather than the company changing its own practices.
“What they try to do is convince the court that their ambitions are and will be sufficient to reach the Paris goals,” said Arjan de Boer, press officer for Milieudefensie. Meanwhile, Shell is continuing to plow capital into new offshore oil projects.
While it’s not yet clear how The Hague’s judges are receiving Shell’s argument, the oil major’s “personal responsibility” message recently earned the firm biting backlash on social media. A Twitter poll Shell posted in early November that asked, “What are you willing to change to help reduce emissions?” went viral, but not in Shell’s favor.
Instead, Twitter users picked up on responses by climate advocates and activists including Swedish teen Greta Thunberg, Rep. Alexandria Ocasio-Cortez, and climate scientist Katharine Hayhoe, that called out Shell’s own responsibility for climate change.
“I’m willing to hold you accountable for lying about climate change for 30 years when you secretly knew the entire time that fossil fuels emissions would destroy our planet,” Ocasio-Cortez tweeted in response.
While 199 people voted in Shell’s poll, and just over a thousand “liked” the tweet, Ocasio-Cortez’s response got more than 396 thousand likes and was shared more than 57 thousand times.
The lawsuit exposes this kind of “greenwashing,” said Hellendoorn. “Shell is currently acting like it’s being really green and good for the environment, but the numbers show that that is definitely not the case.”
The Guardian reported in January that Shell has spent more than $120 billion on fossil fuel projects over the past four years. At that time the firm was on track to spend a fraction of that amount on clean energy expansion, just $2 billion, by the end of 2020, according to The Guardian, although it had told investors in 2017 that it would spend about three times that amount.
“Shell and other fossil fuel corporations want to evade their responsibility to act on climate change, and to push the blame onto consumers for using energy,” Shaw said. “Yet Shell’s own leaked documents reveal that they have known about the impacts of their actions in causing climate change for decades, and that they even predicted a lawsuit against them by environmentalists.”
The Dutch lawsuit against Shell is one of the few lawsuits targeting major oil and gas companies over the climate crisis outside the U.S. The French oil major Total is currently facing a lawsuit in France brought by environmental NGOs in that country.
Shell is also a defendant in more than a dozen climate accountability lawsuits in the U.S., brought by municipalities, states, and a West Coast commercial fishing association. These lawsuits focus on fossil fuel companies’ deliberate campaigns to undermine climate science and downplay the risks of burning coal, oil and gas. The U.S. cases have so far been tied up in procedural battles.
Nikki Reisch, director of the Center for International Environmental Law’s climate and energy program, believes that if The Hague decides for Shell, the high-profile nature of the case still sends an important message.
“It’s really about debunking the myth that changing business conduct to avert climate catastrophe is optional or voluntary in some way,” she said. “Companies can no longer get away with knowingly profiting at our collective peril.”
But a ruling against Shell, said Reisch, “would send a very strong signal to other companies similarly positioned, in terms of their impacts and their knowledge of their operations on the environment, that they face a real risk of liability if they don’t change course immediately.”