A county in southeastern Pennsylvania just north of Philadelphia filed a climate accountability lawsuit on Monday against a handful of major oil and gas companies and their chief trade association, seeking to hold them liable for rising costs associated with recovering from and preparing for increasingly severe climate impacts such as extreme heat and intense storms and flooding.
“In recent years Bucks County has faced unprecedented weather events that have repeatedly put both our residents and our first responders at risk,” Diane Ellis-Marseglia, chair of the board of commissioners for Bucks County, Pennsylvania, said during a news conference announcing the new lawsuit, which accuses fossil fuel entities of lying about the climate consequences of their products to inflate sales and profits at the expense of communities now grappling with worsening climate disasters. Bucks County is the first community in Pennsylvania to sue Big Oil over alleged climate deception. With the filing, the county joins more than three dozen municipalities and states across the US that are turning to the courts in attempts to hold fossil fuel companies accountable for their role in driving climate breakdown, particularly for historical and ongoing deceptive conduct that has stymied meaningful climate action and delayed the transition away from planet-warming fossil fuels. The county’s lawsuit, filed March 25 in the Court of Common Pleas for Bucks County, brings state tort claims of public and private nuisance, trespass, strict liability, negligent product liability and negligence, and civil conspiracy. Named defendants include BP, Chevron, ConocoPhillips, ExxonMobil, Shell, Phillips 66, and the American Petroleum Institute. The 170-plus-page complaint lays out evidence explaining how the oil industry knew more than half a century ago about the potentially catastrophic impacts that unrestrained fossil fuel combustion would have on the climate system, yet despite these advanced warnings major oil companies and their trade associations deployed “tobacco-industry-style campaigns to deceive and mislead the public about the damaging nature of their fossil fuel products.” Initially the deceptive campaigns focused on trying to discredit climate science, and more recently they have evolved into disingenuously portraying the fossil fuel business as engaged in and leading solutions to mitigate the problem. “These companies have known since at least the 1950s that their ways of doing business were having calamitous effects on our planet, and rather than change what they were doing or raise the alarm, they lied to all of us,” said Commissioner Gene DiGirolamo. “The taxpayers should not have to foot the bill for these companies and their greed.” Climate in the Courts reached out to several of the defendants for comment. Neither API nor ExxonMobil immediately responded. The county says their move to sue Big Oil is similar to other corporate accountability lawsuits it has brought against opioid companies, PFAS manufacturers, and social media titans. Deceptive business practices are at the heart of the allegations. As the county’s complaint states in its opening: “Rather than warn consumers and the public, fossil fuel companies and their surrogates mounted a disinformation campaign to discredit the scientific consensus on climate change; create doubt in the minds of consumers, the media, teachers, and the public about the climate change impacts of burning fossil fuels; and delay the energy economy’s transition to a lower-carbon future. This successful climate deception campaign had the purpose and effect of inflating and sustaining the market for fossil fuels, which - in turn - drove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change impacts to Bucks County.” The county has spent and will continue to spend “substantial sums” to deal with climate change impacts such as more intense storms, flooding and storm surge, saltwater intrusion, extreme heat, and droughts, the complaint asserts. “This suit is our tool to recoup costs and fund public works projects like bolstering or replacing bridges, retrofitting county-owned buildings and commencing stormwater management projects, all of which will put us in the best possible position to weather what is certain to come,” said Commissioner Chair Ellis-Marseglia. In terms of requested relief, the county seeks compensatory and punitive damages, disgorgements of profits, recovery of litigation costs and equitable relief including nuisance abatement. The law firm DiCello Levitt is providing outside counsel for the county in this case. DiCello Levitt is also helping represent the city of Chicago in its climate lawsuit against Big Oil, which the city filed in February. Bucks County’s filing this week suggests that the the litigation pressure on Big Oil is not letting up anytime soon, as climate deception cases in the US continue mounting. “More than one in four people in the US now live in a community suing major fossil fuel companies to make them pay for their climate deception,” Richard Wiles, president of the climate accountability advocacy organization Center for Climate Integrity, said in a statement. “Bucks County is the first Pennsylvania government to file a climate accountability lawsuit against Big Oil companies, but it likely won’t be the last.”
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Attorneys representing young Americans in two separate constitutional climate lawsuits - one at the state level in Montana and the other against the federal government - have filed response briefs as government defendants in each case seek to evade accountability through the courts for policies and actions that exacerbate dangerous climate change. In the Montana case, a trial court judge delivered a “historic” verdict last August in favor of the 16 youth plaintiffs suing their state government, finding a state policy that prohibits evaluation of greenhouse gas emissions and climate change in environmental reviews required during the permitting process to be unconstitutional. That ruling followed a landmark seven-day trial in June that saw climate scientists, medical professionals and other experts testify along with the youth plaintiffs, providing the court with clear and compelling evidence tying government-authorized climate pollution to harm to Montana’s environment and its young citizens. It was the first-ever trial in US history in a climate case brought by youth on constitutional grounds, and the judge’s verdict notably recognized that the right to a clean and healthful environment guaranteed under Montana’s constitution includes climate. The state defendants have appealed the ruling, currently pending before the Montana Supreme Court. In its challenge of the trial court’s verdict, the state does not refute the underlying facts of the case or does not even directly argue that the judge was wrong in finding the state’s policy unconstitutional. Instead, the state asserts the judge should not have been allowed to decide the case in the first place. In the federal case, Juliana et al. v. United States, the 21 youth plaintiffs are fighting what their attorneys say is an “unprecedented” attempt by the government defendants to silence them and prevent their testimony and evidence from ever being heard at trial. This case challenges systemic government conduct that contributes to dangerous levels of GHG emissions and worsens the climate crisis, and last year a trial court judge in Oregon ruled that an amended and narrower version of the case could proceed to trial. But government defendants have turned to an appeals court in a last-ditch effort to quash the case before trial, using an extreme procedural maneuver called a “writ or mandamus” to bypass the standard course of litigation, including trial and subsequent appeals. This is the seventh time overall that the government has resorted to this tactic in this case, setting it apart from all other cases in which the US government is a defendant. Youth plaintiffs’ attorneys and other legal experts backing them say this behavior is an “abuse of power.” Our Children’s Trust, an Oregon-based nonprofit law firm representing young people in constitutional climate litigation, is now pushing back against government defendants’ attempts to reverse the trial court decision in the Montana case, and to avoid trial at all costs in the federal Juliana case. Youth Respond to State’s Appeal of “Landmark Victory” in Montana The trial and district court verdict last summer in Held et al. v. State of Montana marked the first time in the US that a government had been held accountable through the courts under constitutional provisions for actions that contribute to the climate crisis. District Court Judge Kathy Seeley concluded in her August 14, 2023 order that the state’s policy barring consideration of climate impacts in environmental reviews under the Montana Environmental Policy Act (MEPA) violated youth plaintiffs’ constitutional right to a clean and healthful environment, noting that this right “includes climate as part of the environmental life-support system.” Seeley’s order struck down the anti-climate policy, which she termed the “MEPA limitation.” The Montana government defendants submitted their opening brief on appeal in February, in which they argue the youth plaintiffs did not have “standing” or permission to sue because the policy at issue is merely procedural and could not substantively cause climate harms; invalidating the policy, they further argue, would not solve global climate change. In a response brief filed on March 13, attorneys for the Montana youth contend that Seeley was correct in finding the plaintiffs had established standing. The MEPA limitation requires state agencies to turn a blind eye to the GHG emissions and climate impacts of fossil fuel projects, shielding them from public scrutiny, and this does in turn contribute to these projects advancing through the permitting process and ultimately creating harmful emissions. As the brief argues, “this case is not about the impacts of climate change writ large, but rather about how Montana’s environment and natural resources, and Montana’s children and youth, are being harmed by Defendants’ actions that cause and contribute to climate harms within Montana.”
The youths’ attorneys essentially say that Seeley’s decision, not only on the standing question but also on finding the MEPA limitation unconstitutional, was correct, and they urge the state Supreme Court to uphold the verdict. “These sixteen youth Plaintiffs are relying on this Court to confirm what they have learned in school: there are three branches of government, and when the political branches violate their fundamental constitutional rights, they can trust an independent judiciary to safeguard their rights,” the response brief concludes. Several of the youth plaintiffs called out their state government for attempting to escape accountability and deny them their constitutional right to a clean and healthful environment. “Today, on my 18th birthday, Montanans’ wellbeing and access to a healthy environment is worsening, while Defendants repeatedly attempt to bog us down, avoid accountability for their actions, and continue with business as usual,” plaintiff Eva L. said in a statement issued on March 13. “We achieved a landmark victory and now the state is failing to make a sound legal argument in its appeal while still actively fighting against our right to a livable planet,” added lead plaintiff Rikki Held. Supporters of the Montana youth filing amici or friend of the court briefs include former Montana Supreme Court justices, constitutional and environmental law professors, children’s rights advocates, tribal and conservation groups, public health experts and doctors, members of the outdoor recreation industry, and others. Amici briefs backing the state’s appeal came from conservative political and business interests and extractive industries. In a statement, Our Children’s Trust, which spearheaded the Montana case, said the district court ultimately made the right decision and that the weight of the evidence is on the plaintiffs’ side. “The District Court correctly found, after a seven-day trial, Defendants are violating Plaintiffs’ fundamental constitutional rights, including their right to a clean and healthful environment,” said Nate Bellinger, senior staff attorney with Our Children’s Trust. “We are confident that after the Supreme Court reviews the extensive trial record, including the testimony from Plaintiffs and experts, it will come to the same conclusion and uphold the District Court’s ruling.” US Government “Not Above the Law” Meanwhile, federal government defendants in the Juliana v. US climate case are similarly arguing that the trial court lacks authority to decide the case. But unlike the Montana case that went through the normal course of litigation, including trial and now a final appeal, the federal case has been bogged down by relentless and unprecedented attempts by the government to evade a trial. Since the Juliana lawsuit was first filed in 2015, government lawyers with the US Department of Justice (DOJ) have made 22 attempts across three presidential administrations to stop the case, according to Our Children’s Trust. In a March 21 filing with the Ninth Circuit Court of Appeals, Our Children’s Trust attorneys representing the 21 youth plaintiffs in Juliana responded to DOJ’s latest bid to terminate the case before trial. DOJ filed what’s called a ‘petition for a writ of mandamus’ with the Ninth Circuit in February - an extreme and extraordinarily rare tactic to override the decision or action of a lower court, typically reserved only for emergency situations. Despite the gravity of the unfolding climate emergency, the US government appears to consider having to defend itself at trial and face evidence of its role in fueling climate breakdown as the real emergency, as DOJ’s February petition is its seventh overall mandamus petition in this single case. This repetitious pattern, legal experts say, is unheard of in American civil litigation. "To file again and again and again for writs of mandamus to keep any evidence at all from being heard is an abuse of power. The plaintiffs have a case to make. Let them make it,” Barbara Bennett Woodhouse, a distinguished professor emeritus at Emory School of Law, said in a statement. Most of DOJ’s previous mandamus petitions, including two to the US Supreme Court, came during the Trump administration in 2018, the year that Juliana was supposed to go to trial. The Ninth Circuit Court rejected several mandamus petitions from DOJ in this case in 2018, a fact that Our Children’s Trust attorneys point to in their new filing with that Court. The Ninth Circuit “reluctantly” decided in a divided 2-1 opinion in January 2020 that the case should be dismissed, citing concerns that courts could not grant the requested remedy ordering the government to develop a climate recovery plan. But that decision was made in an early appeal (called an ‘interlocutory appeal’), not in a mandamus request, and OCT attorneys argue that DOJ is improperly treating its latest mandamus petition as if it were another appeal. The trial court judge did not “clearly err” in allowing plaintiffs to revise their original complaint to try to cure the redressability issue that was the only basis for the Ninth Circuit’s 2020 dismissal decision, they further argue. Last year, US District Judge Ann Aiken decided the case should proceed to trial under the narrower, revised version of plaintiffs’ complaint, which now seeks only declaratory relief - a court declaration that the government’s policies and practices promoting fossil fuels amounts to violations of youths’ fundamental rights (to life, liberty, and property) under the US Constitution. The case was back on track to proceed to trial before the DOJ filed its latest mandamus petition along with a request to pause proceedings, called a “stay,” which the Ninth Circuit Court recently denied. The Court also ordered the youth plaintiffs’ attorneys to respond to DOJ’s petition. “While they would strongly prefer not to stand trial and await an appeal after final judgment, Defendants are not above the law,” the attorneys with Our Children’s Trust conclude in their response brief. The fate of this landmark climate change lawsuit against the US government now rests in the hands of the Ninth Circuit appeals court. If that court denies the government’s petition, government lawyers could potentially turn to the US Supreme Court. Supporters of the Juliana youth plaintiffs have sent more than 47,000 emails in recent weeks to President Biden and his administration demanding an end to DOJ’s aggressive tactics to kill the case before trial. An in-person rally to amplify the call to let the youth be head in court is planned for April 21 in Washington DC. “Youth are fighting for their lives, quite literally,” Julia Olson, founder and chief legal counsel at Our Children’s Trust, said in a statement. “This is the last opportunity for the Court of Appeals to rule that these youth—whose physical and mental health is threatened by wildfires, extreme heat and floods—deserve to be heard. The fact that the DOJ has gone to such outrageous lengths to silence them points to the gravity of what they have to say.” “We filed the lawsuit because we saw the state of our planet and our climate, knowing that if the government continued contributing to climate change it would get worse,” plaintiff Miko Vergun said. “Our trial dates have been taken away from us multiple times and each year our climate stability gets worse. We can no longer wait. We need to go to court.” A court in the Netherlands handed down what environmental campaigners say is a “historic” verdict today against Dutch airline KLM, finding the company’s sustainability claims in its advertising – including its professed commitment to the goals of the Paris Climate Agreement – to be misleading and in violation of EU consumer law. The ruling sets a “major legal precedent with ramifications across the international aviation sector and for all companies advertising their commitment to the Paris Agreement,” according to UK-based environmental law organization ClientEarth, which represented Dutch climate groups Fossielvrij and Reclame Fossielvrij in their landmark greenwashing lawsuit against KLM. “Companies that publicly advertise commitments to the goals of the Paris Agreement on climate must now ensure that those claims are feasible and concrete, or risk losing in Court,” Johnny White, an attorney with ClientEarth, said in a statement. “This judgment is nothing short of a wake-up call for highly polluting industries and companies that try to sell the image of commitment to the Paris climate goals without having the plans to get there. It leaves the airline industry’s climate PR strategy dead in the water.” The lawsuit, filed in July 2022, was the first worldwide to challenge an airline’s marketing and advertising as unsubstantiated greenwashing in court. The District Court of Amsterdam ultimately agreed with claimants Fossielvrij and Reclame Fossielvrij that KLM’s ads were in breach of the EU Unfair Commercial Practices Directive. The court found the airline’s claims around reducing the climate impact of aviation through use of offsetting products like so-called “sustainable aviation fuels” (SAF) or through supposed carbon offset programs like reforestation were misleading. The ruling, for example, stated: “At the moment, SAF's share in total fuel consumption (and hence CO2 emissions reduction) is still very limited due to various reasons. A more substantial share can only be expected in the distant future, and thus uncertain. The expression is therefore misleading.” In a statement responding to the ruling, KLM said it appreciates the court’s clarification “about what is possible and how we can continue to communicate transparently and honestly about our approach and activities.” KLM further said that it is reviewing the ruling and plans to “return to it substantively at a later date.” White said the court’s decision should serve as a warning to other airlines that use dubious carbon offsetting claims in their marketing. “All airlines and other companies making claims about their products’ environmental impacts that are based on offsetting should take heed from this ruling,” he said. Climate-related marketing claims based on offsetting or compensating activities are increasingly coming under legal scrutiny. Just last year, for example, courts in Sweden, Germany, and Austria ruled that these types of claims were misleading to consumers. The ruling in Austria came in a greenwashing lawsuit filed by Austria's Association for Consumer Information (VKI) against Lufthansa subsidiary Austrian Airlines challenging the airline's ads touting "CO2 neutral" flights that used sustainable aviation fuel. Other airlines ar currently facing similar legal challenges, including an OECD complaint filed against Virgin Atlantic and British Airways in the UK, and a consumer class action lawsuit brought against Delta Air Lines in the US. In the KLM case, the Dutch court stopped short of issuing a ban on future similar claims, and KLM had already retracted its challenged advertising in response to the lawsuit. The Dutch campaign groups are still calling for a tobacco-style ban on fossil fuel advertising.
“Tackling greenwashing is currently a cat-and-mouse game. Just when one misleading campaign is stopped, ten more pop up. You can only react when the harm is already done: people have already seen the ads,” said Rosanne Rootert, campaigner at Fossielvrij Reclame. “A complete ban on fossil advertising, such as for air travel, is the only way to truly eliminate greenwashing by these companies. Lawsuits like this would then be unnecessary.” The Amsterdam district court also found that KLM’s claims around its commitment to the Paris Agreement and its aims to achieve net-zero emissions were too optimistic, and therefore misleading, given the limited decarbonization measures it is implementing. ClientEarth said the court’s ruling sets a precedent for corporations touting unsubstantiated net zero promises, and that companies’ “public relations firms and advertising agencies should also take note.” “Today’s judgment is a landmark victory in the fight against greenwashing,” Hiske Arts, campaigner for Fossielvrij, said in a statement. “The significance of the Court’s decision is clear: companies are not allowed to claim they are tackling dangerous climate change when in reality they are fueling the crisis.” The story has been updated to include KLM's response to the ruling as well as with additional context on greenwashing litigation and an additional photo. Shell continues to expand its oil and gas operations and approve development of new extraction projects in an apparent violation of a 2021 Dutch court ruling requiring the oil major to reduce CO2 emissions across its entire supply chain by 45 percent by 2030, a new report suggests. The report released today by Milieudefensie (Friends of the Earth Netherlands) and Oil Change International comes just two weeks before the scheduled court hearings on Shell’s appeal of the landmark verdict. That ruling, issued on May 26, 2021 by the District Court in The Hague in a climate lawsuit brought by Milieudefensie, marked the first time in the world that a court had ordered a polluting company to take responsibility for the climate crisis by reducing emissions and aligning its business with the objectives of the Paris Agreement, which aims to limit global temperature rise to well below 2°C - preferably to 1.5°C. Expert reports and analyses, meanwhile, have confirmed that development of new oil and gas fields is incompatible with mitigation scenarios that hold dangerous warming to the 1.5°C limit. In its 2023 update to its Net Zero Roadmap report, the International Energy Agency states that “there is no need for investment in new coal, oil and natural gas” in the pathway that reduces emissions to net zero by 2050. The Intergovernmental Panel on Climate Change warns in its 2023 synthesis report that “projected CO2 emissions from existing fossil fuel infrastructure without additional abatement would exceed the remaining carbon budget for 1.5°C.” The head of the IEA, Fatih Birol, further warns in a 2023 report that the oil and gas industry faces “a moment of truth” in terms of its role in the clean energy transition, noting that this transition requires “much lower demand for oil and gas, which means scaling back oil and gas operations over time – not expanding them.” Yet expanding its extractive operations is precisely what Shell is doing, according to the new report titled Shell vs. the Climate: Expanding oil and gas, fueling the climate crisis. The report finds that Shell has approved the development of at least 20 new oil and gas extraction assets since the May 2021 Dutch court verdict. That is double the number of approved new extraction projects reported in a previous briefing from Milieudefensie and OCI in September 2022. The 20 new projects in total could result in emissions of 753 million metric tons of cumulative CO2 pollution, which is more than fives times the emissions of the Netherlands in 2021, the report notes. Shell approved six new oil and gas projects in 2023 alone. Any new project approvals are at odds with the Paris Agreement, Milieudefensie and OCI argue. “Any expansion of oil and gas goes against the court order for Shell to reduce its carbon dioxide emissions by 45% by 2030,” the organizations state in a press release. The report also found that Shell has ownership in full or in part in over 800 oil and gas assets yet to be developed, which threaten an additional 5.3 billion metric tons of CO2 emissions (38 times the emissions of the Netherlands in 2021). The projected volume of undeveloped oil and gas in Shell’s portfolio has increased by 24 percent since the 2022 briefing. “Rather than writing off undeveloped oil and gas as incompatible with 1.5°C, Shell is actively seeking more of it,” the report explains. Data on Shell’s assets, including production and investment plans, comes from Rystad Energy. The analysis from Milieudefensie and OCI is limited to the production and resulting emissions from oil and gas that Shell directly extracts, which makes up less than half of the total products that Shell sells. The vast majority of Shell’s supply chain emissions comes from the combustion of the company’s products (whether extracted directly by Shell or not), known as “Scope 3” emissions, and Shell is obligated to cut these emissions per the District Court’s mandate. Rather than shrinking its oil and gas business or investing more in renewable energy or other alternative fuels, however, Shell is doubling down on its extractive operations after raking in record profits of around $40 billion in 2022. Shell is expected to invest more than $13 billion annually in upstream oil and gas extraction through 2030, with much of that projected to go towards developing new extraction assets, particularly in fossil gas and “liquefied natural gas” (LNG). Last year Shell announced it would not gradually decline oil production by 1-2% annually until 2030, as the company had previously promised. Shell has also cut spending on its “renewables and energy solutions” segment.
In its Statement of Defense on Appeal filed with the Dutch appeals court, Milieudefensie argues that Shell’s current corporate policy “still provides for very large-scale investments in oil and gas and will consequently lead to no or hardly any emissions reductions on the part of the Shell Group by 2030.” The implication is that Shell is therefore defying the reduction obligation that the District Court imposed on it. As Miliudefensie notes in its Statement: “Shell has chosen to largely ignore a judgment which was declared to be immediately enforceable.” “The Court ordered Shell to reduce its total emissions by 45%. Since the vast majority of emissions caused by Shell’s business activities stem from the production, processing and sales of oil and gas, Shell must begin winding down these fossil fuel businesses across the board,” Milieudefensie’s Sumeyra Arslan, a co-author of the new report, told Climate in the Courts. “Serving as one of the important evidences in the appeal, this report shows what hides behind the greenwashing efforts of Shell,” she added. “The new strategy of Shell to focus more on fossil fuels and reduce its investments in renewables is a recipe for disaster and is not in line with the court's verdict.” In an emailed statement responding to the report, Shell argued that it is “playing an important role in the energy transition by providing energy needed today while investing in low-carbon energy solutions of the future.” “We expect LNG will play a critical role in the transition as it provides a secure supply of energy and will enable the world to make the most immediate progress in reducing emissions by replacing coal growth in industry,” a Shell spokesperson said in the statement. “Note that the court ruling in the climate case gives Shell broad discretion to determine how the emissions reduction should be achieved. Importantly, the court did not impose a prohibition on new oil and gas investments,” the Shell spokesperson added. The Court of Appeal in The Hague will hear Shell’s appeal of the 2021 verdict in early April, with proceedings scheduled for April 2, 3, 4, and 12, 2024. Lawyers representing oil and gas industry defendants in a climate lawsuit brought by the city and county of Honolulu are calling on the US Supreme Court to quash this suit and others targeting the industry as the cases start advancing towards trial. Warning that the industry faces the threat of billions of dollars in damage awards if the litigation proceeds, the industry lawyers argue in a freshly filed petition that the Court “should put a stop to it”, adding that this is likely the Court’s only chance to weigh in on these high stakes climate court cases in the near future.
In a certiorari petition submitted to the Supreme Court of the United States on February 28, the oil companies say the Court should decide “whether the state-law claims asserted in this nationwide litigation are even allowable before the energy industry is threatened with potentially enormous judgments.” Specifically, they are asking the Court to review a recent ruling from the Hawaii Supreme Court affirming that Honolulu’s climate lawsuit could advance towards trial under state tort law. The industry defendants in this case, which include major petroleum producers like Chevron, BP, and ExxonMobil, had argued unsuccessfully that federal law preempts state law in cases they say are about global climate change. Now they want the nation’s highest federal court to decide this question of whether federal law precludes state law claims in climate liability lawsuits. Honolulu’s case is one of more than two dozen cases brought by municipal and state governments against fossil fuel companies alleging the companies lied to consumers and the public about the climate consequences of their products, effectively inflating sales and delaying and obstructing the transition away from fossil fuels. Some of the lawsuits seek to recover damage costs associated with localized climate impacts and adaptation, some seek to hold companies like Exxon liable for alleged consumer fraud, and others take a hybrid cost-recovery and consumer fraud approach. But for the most part the cases are all brought under state law, including tort claims like public nuisance and failure to warn as well as violations of state and local consumer protection statutes. A pair of cases filed by communities in Puerto Rico features federal racketeering charges as well as state law claims. Similar to tobacco and opioid litigation, these climate lawsuits attempt to hold a powerful industry accountable for the harmful effects of its products and for its deceptive conduct. The new Supreme Court petition comes as many of the climate lawsuits have overcome initial procedural hurdles and are starting to address the substantive allegations – the “merits.” As industry lawyers explain in the petition: “Litigation on the merits in these cases is beginning in earnest, with discovery and pretrial proceedings underway in state courts.” Discovery is the pre-trial evidence gathering phase, and in these types of cases about corporate deceit, that involves obtaining internal documents and questioning former and current industry executives and insiders under oath. Fossil fuel defendants in Honolulu’s case and other climate suits against them have tried to avoid getting to this stage in litigation by asserting that only federal courts should handle these proceedings. Courts have resoundingly rejected these arguments, but the bid to try to force the lawsuits into federal courts has effectively delayed the litigation from swiftly getting to trial. At every turn, industry lawyers have mounted challenges to procedural rulings against their clients. They have even sought US Supreme Court review several times already. In October 2020, the Supreme Court did grant their petition to review a narrow technical matter in a climate case brought by the city of Baltimore. The Court heard oral arguments in January 2021, and its decision directed several federal appeals courts to reconsider defendants’ arguments in a handful of climate suits including Baltimore’s case. More recently, the Supreme Court in 2023 declined to take up the industry’s petitions to review appellate rulings affirming that these climate cases can proceed in state courts. In an order list issued on April 24, 2023, the Court denied cert petitions in climate cases filed by the city and county of Boulder in Colorado, the city of Baltimore, several coastal communities in California, Honolulu, and the state of Rhode Island. In denying the petition in Boulder’s case, the Court noted that Justice Samuel Alito – who owns stock in several oil companies – took no part in the decision, and that Justice Brett Kavanaugh was in favor of granting the petition. It remains to be seen whether the Court will accept or decline Big Oil’s latest petition, which one climate law expert described as a “Hail Mary” bid. “The fact that the Court denied cert in the Boulder case despite Kavanaugh’s dissent suggests there aren’t 4 votes to grant it in this case,” Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School, told Climate in the Courts. Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia Law School, said he fully expected industry defendants to once again turn to the Supreme Court for help. “This may be their best and last shot at avoiding multiple state court trials that would put them in a harsh spotlight and cost them very high legal fees, with a risk of massive judgments at the end,” Gerrard said. He added that he expects fossil fuel defendants in some of the other climate cases to try to further delay proceedings by requesting that courts pause or “stay” the litigation while the Supreme Court petition in Honolulu’s case is pending. “If the Supreme Court takes the case we probably won't have a decision until well into 2025,” Gerrard told Climate in the Courts. Oil Companies Say Lawsuits Pose a “Serious Threat” to Their Industry Lawyers working on behalf of Chevron and ExxonMobil appear to be leading fossil fuel defendants’ latest plea to the US Supreme Court to intervene before the companies are forced to face trial. Theodore J. Boutrous Jr. of the firm Gibson, Dunn & Crutcher LLP - lead counsel for Chevron - and Kannon Shanmugam and Theodore Wells, Jr. of the firm Paul, Weiss, Rifkind, Wharton & Garrison LLP – representing Exxon – are among the named lawyers listed on the front of the new cert petition in Sunoco LP et al., Petitioners v. City and County of Honolulu et al. In their petition, they argue that climate accountability lawsuits like Honolulu’s case are essentially impermissible attempts to regulate interstate and global greenhouse gas emissions, which they say are the source of the alleged climate damages. According to the industry lawyers, the Hawaii Supreme Court got it wrong in finding that “emissions were not the source of [Honolulu’s] injuries; [companies’] marketing and public statements were.” It is an argument they have repeatedly made in hearings and briefs in these climate cases, attempting to characterize the litigation as focused on global emissions while deflecting from the core allegations of deception, fraud and misleading marketing and advertising. “Industry spokespersons keep trying to make these cases about regulation and policy and politics,” Parenteau said. “But they aren’t about any of that. They are about the recovery of some of the costs incurred as a result of the companies deliberate and ongoing campaign of lies and deception about the dangers of their products.” More than three dozen communities across the US have filed climate accountability lawsuits against Big Oil over the past seven years, and more cases continue to be filed. The most recent filing came about two weeks ago by Chicago, the third-largest city in the country. “Those cases present a serious threat to one of the Nation’s most vital industries,” lawyers for Big Oil state explicitly in their cert petition. Climate accountability advocates say the industry feels the walls closing in and is desperate to evade having to face trial. “In light of the growing body of evidence of Big Oil’s climate fraud and deception, and lower courts’ continued rejection of their efforts to escape trial, it’s no surprise that fossil fuel companies are once again attempting to escape accountability,” said Alyssa Johl, general counsel with the Center for Climate Integrity. “Communities across the country deserve their day in court to hold Big Oil accountable for their climate lies and the damages they’ve caused.” The State of New York has filed a climate lawsuit against JBS, the world’s largest beef producer, seeking to hold it accountable for alleged misrepresentations and misleading marketing. The company has engaged in deceptive business practices and fraud through greenwashing claims about the environmental sustainability of its beef products and about its ability to meet its target of reducing greenhouse gas emissions across its supply chain to net zero by 2040, the State’s lawsuit argues.
Industrial agriculture, and especially beef production, is a significant contributor to greenhouse gas emissions that are driving climate breakdown. The world’s five biggest meat and dairy corporations together account for more annual GHG emissions than oil majors like ExxonMobil, Shell and BP do individually, and JBS’s emissions in 2021 were greater than that of Ireland. Yet despite its sizable climate impact, JBS highlights its net zero climate commitment and makes other environmental claims through advertisements and marketing that cater towards environmentally-conscious consumers. According to the New York Attorney General Office, such representations are deceptive and take advantage of consumers’ preference for sustainable products. “When companies falsely advertise their commitment to sustainability, they are misleading consumers and endangering our planet,” New York Attorney General Letitia James said in a statement. “JBS USA’s greenwashing exploits the pocketbooks of everyday Americans and the promise of a healthy planet for future generations. My office will always ensure that companies do not abuse the environment and the trust of hardworking consumers for profit.” The lawsuit was filed on February 28 in the New York County Supreme Court in New York City against JBS USA Food Company – JBS’s American subsidiary – and alleges violations of New York business law for false advertising and deceptive acts or practices and violations of state law pertaining to fraudulent conduct. New York seeks a court order for the company to cease its misleading marketing, and it also seeks civil penalties and disgorgement of profits. The state says that JBS continues to promote its “net zero by 2040” climate commitment even while it plans to expand beef production and even after the Better Business Bureau’s National Advertising Division determined that the company’s claims around this target were unsubstantiated and therefore create a misleading impression. According to the state’s complaint, JBS’s net zero target is “not feasible given the JBS Group’s current levels of livestock production and the company’s plans to grow global demand for its products.” The complaint points to a New York Times advertisement from April 2021 as an example of the company’s allegedly false representations. In that ad, JBS claims: “Agriculture can be part of the climate solution. Bacon, chicken wings and steak with net-zero emissions. It’s possible.” Climate scientists, however, explain in the Intergovernmental Panel on Climate Change’s latest scientific assessment that greenhouse gas emissions from animal agriculture, namely methane and nitrous oxide, cannot be mitigated effectively though existing or proposed technologies, and that production of and demand for meat, especially beef, must be curbed. Animal agriculture is responsible for more than 14 percent of total anthropogenic greenhouse gas emissions annually. JBS defended its environmental commitments in a comment responding to the new lawsuit. “JBS takes its commitment to a more sustainable future for agriculture very seriously,” Nikki Richardson, a company spokesperson, said in an emailed statement. “We disagree with the action taken today by the New York Attorney General’s office. JBS will continue to partner with farmers, ranchers and our food system partners around the world to help feed a growing population while using fewer resources and reducing agriculture’s environmental impact. Our belief that American agriculture can help sustainably feed the world is undeterred.” Environmental advocates and campaigners applauded the New York Attorney General Office for taking legal action against one of the world’s largest corporate greenhouse gas emitters. “JBS is one of the top global companies contributing to climate change and has proven time and again it can't be trusted to self-police,” Monique Mikhail, campaigns director in agriculture climate finance at Friends of the Earth U.S., said in a press release. “Corporations should and must be held responsible when they mislead the public about their harmful impacts.” “As the largest meat company in the world, with a significant climate footprint, JBS has a responsibility to be fully transparent about its emissions, reduction strategies, and outcomes,” said Ben Lilliston, director of climate strategies at the Institute for Agriculture and Trade Policy. “The New York Attorney General’s action today not only holds JBS accountable for its unsubstantiated net-zero claim, but also sends a strong signal to other companies that empty promises do not pass for climate action.” In November the New York attorney general filed a groundbreaking lawsuit against PepsiCo to hold the company accountable for its single-use plastic packaging that is polluting the environment, since most plastic cannot be recycled. The lawsuit claims PepsiCo failed to warn consumers about health and environmental risks associated with its plastic packaging and misleads consumers about its efforts to tackle the plastic problem. Like animal agriculture and beef production, plastic is a big contributor to greenhouse gas emissions that cause climate change. The city of Chicago filed a climate accountability lawsuit against half a dozen major oil and gas companies and their chief lobbyist group the American Petroleum Institute, charging them with deceptive conduct that resulted in escalating climate-related damages and costs incurred by the city and its residents. Chicago’s lawsuit is the latest from a US jurisdiction to target Big Oil for its alleged climate deception, and comes just five months after the state of California brought a similar climate lawsuit that was hailed as a “watershed moment” in the fight for climate accountability.
Chicago filed its complaint on Tuesday, February 20 in the Circuit Court of Cook County. The complaint alleges causes of action under state tort law, including public nuisance, negligence, and failure to warn as well as civil conspiracy and unjust enrichment and violations of local city laws concerning consumer fraud and misrepresentations relating to sales and advertising. In addition to API, the named defendants are BP, Chevron, ConocoPhillips, ExxonMobil, Phillips 66, and Shell. These companies and API knew more than 50 years ago that burning fossil fuels would have potentially catastrophic consequences for society, yet rather than publicly acknowledging this they doubled down on production and distorted the public’s understanding of climate change to protect profits, the case argues, supported by documented evidence. The petroleum industry funded front groups and campaigns to promote climate denial and block regulatory and policy responses to the looming environmental threat, which has now grown into a full-blown crisis wreaking havoc in communities across the United States and beyond. With its legal filing, Chicago joins more than three dozen jurisdictions in the US that have turned to the courts seeking to hold the oil and gas industry liable for climate change harms. “These companies knowingly deceived Chicago consumers in their endless pursuit of profits. As a result of their conduct, Chicago is enduring extreme heat and precipitation, flooding, sewage flows into Lake Michigan, damage to city infrastructure, and more. That all comes with enormous costs,” Alderman Matt Martin said in a press release. The lawsuit demands that Big Oil shoulder some of these costs. Specifically, the city seeks compensatory and loss-of-use damages, penalties and fines for statutory violations, and disgorgement of profits, as well as a court order that defendants cease their deceptive conduct. While oil and gas companies no longer outright deny that climate change is real, they have shifted their misleading messaging to claiming that their products, particularly fossil gas, are climate friendly and that their industry is leading climate solutions. Oil industry representatives and their allies slammed Chicago’s lawsuit and said courts should not be deciding climate policy. Ryan Meyers, general counsel of the American Petroleum Institute, called Chicago’s action part of an “ongoing, coordinated campaign to wage meritless, politicized lawsuits against a foundational American industry,” the Chicago Sun-Times reported. Phil Goldberg, special counsel for the Manufacturers’ Accountability Project – an industry-backed campaign that pushes back against lawsuits targeting corporate polluters – said in a statement that “this litigation is not the type of action that is going to lead to meaningful solutions,” adding, “courts are simply not the appropriate places to decide climate policy.” Chicago officials, however, say their lawsuit is not about climate policy, but about accountability. “There is no justice without accountability. From the unprecedented poor air quality that we experienced last summer to the basement floodings that our residents on the West Side experienced, the consequences of this crisis are severe, as are the costs of surviving them,” Chicago Mayor Brandon Johnson said in a press release. “Evidence shows that these Defendants intentionally misled Chicago residents about the climate change-related dangers associated with their oil and gas products,” said Corporation Counsel Mary Richardson-Lowry. “We bring this lawsuit to ensure that the Defendants who have profited from the deception campaign bear responsibility for their conduct.” Montana Defendants Claim Trial Judge "Had No Authority" to Rule on Historic Youth Climate Case2/15/2024 In August 2023, Montana District Court Judge Kathy Seeley issued what has been described as a “landmark” and “historic” win for the sixteen young people who sued their state government over a policy that bans regulators from even considering climate change in routine environmental impact assessments. Following a seven-day trial in June, Seeley determined that Montana had violated its state constitutional guarantee of the right to a clean and healthful environment through this policy that shielded fossil fuel projects from scrutiny over their climate impacts – the first time in U.S. history that a government has been held accountable under constitutional provisions for actions that contribute to the climate crisis.
Now, Montana is urging the state’s highest court to overturn that ruling by arguing that Seeley should never have been allowed to decide on the case in the first place. In their opening brief filed with the Montana Supreme Court on February 12, state defendants in Held et al. v. State of Montana claimed that the district court “had no authority to decide this case” because the youth plaintiffs lacked what is called standing, or the permission to be in court bringing a lawsuit. Specifically, the state argues that the policy at issue in the case did not cause climate change injuries to plaintiffs. It also argues that invalidating the policy would not redress any alleged harm, because scrapping it would not substantially alleviate the global climate crisis. In making these arguments, state defendants say that the ‘causation’ and ‘redressability’ requirements for plaintiffs to have standing have not been met. However, the state is not refuting the facts and evidence underlying Seeley’s decision or directly challenging her determination that the policy was unconstitutional. Instead, the state is claiming that it was not her place to even make that judgment. “It was very interesting that the State did not argue that Judge Seeley was wrong in finding that the state law barring consideration of climate change in making energy policy violated the environmental rights provisions of the state constitution. This amounts to an admission,” Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, said via email. While the Held lawsuit had a broader scope when it was filed in 2020, by the time it reached trial last year it had been narrowed in terms of challenged policies and requested relief. Seeley had denied plaintiffs’ request for ordering the government to develop a climate recovery plan to rapidly decarbonize in line with the best available science. The court could only declare government acts to be unconstitutional, not order a certain policy course change. By the time of trial, the sole policy or state law that she would be scrutinizing was a statute that prohibited assessment of climate impacts or greenhouse gas emissions under the Montana Environmental Policy Act (MEPA). It was essentially a weakening or restriction of MEPA, mandating that state agencies like the Montana Department of Environmental Quality turn a blind eye to climate pollution when doing environmental reviews as part of the permitting process. Seeley referred to it as the “MEPA limitation.” Echoing the arguments made at trial, state defendants asserted in their appellate brief that MEPA is strictly procedural and has no bearing on permitting decisions. The MEPA limitation therefore has no substantive authority or influence on regulators’ issuance of permits for environmentally harmful activities like a coal mine expansion, according to defendants. Seeley did not find such arguments convincing, and the state does not appear to be claiming that she was wrong in her finding that the MEPA limitation policy is unconstitutional. What the state is saying is that courts cannot tell the political branches what to do. Even if the MEPA policy is unconstitutional, agencies “are not are not required to analyze GHG emissions and climate impacts in MEPA reviews”, defendants argue. In other words, the state contends that while Seeley’s decision may invalidate the MEPA limitation, it is not a mandate that regulators must analyze GHG emissions in every environmental review. They could, and they are not prohibited from doing so, but they are not required to do this analysis – or so their argument goes. The Norwegian government is turning to the Court of Appeal seeking to reverse a landmark ruling that invalidated the State’s approvals of three new oil and gas fields in the North Sea on climate grounds. The verdict, delivered by the Oslo District Court on January 18, 2024, halted any further permitting or development of the offshore fields.
That court-imposed order, called an injunction, remains in effect regardless of the government’s attempt to challenge it, according to Frode Pleym, head of Greenpeace Nordic, which brought the climate lawsuit against the State along with Natur og Ungdom (Young Friends of the Earth Norway). The environmental groups successfully argued that the State’s approvals of the new oil fields, called Breidablikk, Yggdrasil, and Tyrving, did not adequately account for their expected contribution to global greenhouse gas emissions as required under Norwegian and EU law. The groups pointed to the Norwegian Supreme Court’s finding in a prior version of this litigation that Norway is obligated to consider the full climate impact of oil and gas projects prior to their approval. That includes the emissions generated when the oil is combusted, even if it happens outside Norway’s borders. In approving the North Sea fields, the government dismissed or downplayed the climate impact, the district court found. Such a deficient environmental assessment violates Article 112 of the Norwegian constitution and the EU Project Directive, according to the verdict. “This is the first win on oil for environmental organisations against the petrostate Norway,” Klimentina Radkova, climate and energy advisor and legal campaigner with Greenpeace Nordic, said via email. “It also creates precedent for other European countries, by way of the Project Directive.” The EU Project Directive mandates that EU member states take climate impacts into consideration in environmental impact assessments. Climate campaigners beyond Norway may seek to build upon the Greenpeace court win in Oslo as they challenge government-sanctioned fossil fuel expansion projects. While the UK is not subject to the EU Project Directive, climate lawyers there are hopeful they can convince courts that opening up new oil fields in the North Sea, like the Rosebank field, is absurd and unlawful in the midst of a climate emergency driven largely by fossil fuels. The UK also disregards combustion emissions in allowing these new projects to move forward. As Tessa Khan, a lawyer and executive director of the climate organization Uplift, writes in The Guardian: “The judgment in Norway has set an example that provides fertile ground for the government’s position to be challenged in UK courts.” It will now be up to the Court of Appeal in Norway to decide whether or not to uphold this judgment. “We can confirm that we are appealing the verdict,” Stine Grimsrud, spokesperson for the Norwegian Ministry of Energy, said via email. In a press release commenting on its decision to appeal, the Ministry said it disagrees with the district court’s finding of “procedural errors” in the fields’ approvals. According to the Ministry, it has complied with the Supreme Court’s ruling around consideration of a petroleum project’s full climate impact, claiming, “we now also assess combustion emissions when processing each individual development plan.” The Ministry says that going forward, it will be making adjustments in its assessment process for combustion emissions in order to be more inclusive. Norway’s Ministry of Energy also defended its continued support for oil and gas extraction. “The judgment from the Oslo district court is about the case management process related to new development projects, not whether we should have oil and gas production on the Norwegian continental shelf or not. We shall still have that. The government will further develop, not liquidate, the petroleum sector,” Energy Minister Terje Aasland said in the press release. Leaders with Greenpeace Nordic and Natur og Ungdom say they are confident that their case will survive a challenge on appeal. “We have a very strong case and are ready to fight for this on behalf of future and current generations,” Pleym said. “We are disappointed that the State does not want to acknowledge their legally bound duty to assess the climate impacts of Norwegian oil and gas, but we are convinced that the Court of Appeal will uphold the verdict from Oslo District Court, Gytis Blaževičius, head of Natur og Ungdom, added. For now, the district court’s ruling remains in effect and demonstrates that courts can play a critical role in holding governments accountable in the context of the climate emergency. “It is another case in a long line of climate litigation which has been successful in holding authorities accountable,” Radkova said, “and it shows that no one is above the law and we as citizens have mechanisms in place which safeguard our rights.” *Updated February 1, 2024 with comments from Norway's Ministry of Energy The Dutch NGO that successfully sued Shell announces new climate case against fossil fuel financier ING, while the island of Bonaire files climate lawsuit against the Dutch state The Netherlands has been a hotspot for climate litigation. In 2015 the Urgenda Foundation along with Dutch citizens won a historic verdict against the Dutch government, marking the first time in the world that a court ordered a government to take more stringent climate mitigation action. The Dutch Supreme Court upheld this ruling in 2019, setting a powerful example indicating that governments have a legal duty to respond more urgently and effectively to the climate crisis in line with their human rights obligations. In 2021 a Dutch court delivered a groundbreaking decision in a climate lawsuit against oil major Shell, implying that this legal duty extends also to (multinational) corporations. Next month a court is expected to issue a decision in a climate case alleging greenwashing by Dutch airline KLM. And so far this month, Dutch citizens and climate campaigners have launched two new legal challenges – one against the government, and one against the country’s largest bank. On January 19, Friends of the Earth Netherlands (Milieudefensie) announced the initiation of legal action against the Dutch bank ING. In a “notice of liability” letter to ING’s board chair, the first step of litigation, Milieudefensie says the bank has breached its legal duty of care by failing to align its business with the objectives of the Paris Agreement, including by continuing to finance polluting companies that are driving dangerous levels of warming inconsistent with global climate action goals. “ING continues to exacerbate the climate crisis,” Donald Pols, director of Milieudefensie, said at a press conference announcing the group’s plan to take the bank to court. He noted that ING “still partners with and funds companies that start new fossil fuel projects” and that ING has said it would stop funding new oil and gas projects only by 2040 – 15 years too late. According to the letter, ING has self-reported that its financed GHG emissions are 61 megatonnes of CO2-equivalent (in 2022), which is greater than the annual emissions of entire countries like Sweden or Cambodia. And in the years since the Paris Agreement entered into effect, ING has issued more than 83 billion Euros in bonds to the fossil fuel industry. Given this financing going into climate destabilizing companies and activities, Pols says that ING “is the banker of the climate crisis.” His organization is demanding that the bank stop engaging with big polluters if they fail to demonstrate they have credible climate transition plans. Milieudefensie also demands that ING halve its own emissions by 2030 (at least 48% reduction in CO2 and 43% reduction in CO2-e) and ensure its climate plan is fully aligned with the Paris Agreement goal of limiting warming to no more than 1.5 degrees C. In an online statement responding to the announcement from Milieudefensie, ING defended its climate position, saying its financing of non-sustainable activities like fossil fuel projects is merely “a reflection of the current global economy.” “We're confident that we take impactful action to fight climate change,” Arnaud Cohen Stuart, head of Business Ethics for ING, said in the statement. “We will of course respond in court if necessary.” Milieudefensie has requested a response to its letter within eight weeks, and if the bank does not agree with the NGO’s demands, then the group will file a lawsuit in court. Milieudefensie Jong, the organization’s youth division, is also a claimant in the matter. “I hope that just like in the Shell case, the scales of Lady Justice will be in favor of life, and not money,” Winnie Oussoren, chairman of Milieudefensie Jong, said during the press conference. Milieudefensie is the Dutch NGO that took Shell to court over climate change – and won. The District Court of the Hague ruled in 2021 that Shell must reduce its entire supply chain emissions (Scopes 1, 2, and 3) by at least 45 percent by 2030. Shell has appealed the verdict, and the appellate court is scheduled to hear the case this April. Meanwhile, eight Dutch citizens from the Caribbean island of Bonaire along with Greenpeace Netherlands officially sued the Dutch state last week over climate. Bonaire, a low-lying island located about 80 kilometers off the coast of Venezuela, is a former Dutch colony that is now a special municipality of the Netherlands. The island is vulnerable to rising sea levels and is already experiencing severe flooding, extreme heat, and degradation of coral reefs, among other consequences of anthropogenic warming.
The Netherlands has not done enough to protect residents of Bonaire from these worsening climate impacts, the claimants say. By taking the Dutch government to court, they aim to compel the state to develop a concrete plan to help the island adapt and survive, and to ensure the Netherlands takes even more aggressive climate mitigation action than it has already committed to. The lawsuit requests the court to order the government to do its “fair share” to try to limit warming to no more than 1.5 degrees C, which entails zeroing out emissions by 2040 at the latest, 10 years earlier than currently planned. In the government failing to take these actions, the case alleges the government is violating its legal obligations under human rights law. “It is the duty of the Dutch government to protect us all from the consequences of the climate crisis,” Andy Palmen, director of Greenpeace Netherlands, said in a press release. “Bonaire is being hit hard by rising sea levels, heat and the disappearance of coral. The government has a duty to limit global warming as much as possible and is now failing to do so.” According to a Greenpeace-commissioned study by the Vrije Universiteit Amsterdam (VU), a fifth of the island could be permanently submerged before the end of the century. Greenpeace Netherlands initiated legal proceedings last year in May by sending a letter to the Dutch prime minister laying out the demands to protect Bonaire from further climate injustice. On January 11, Greenpeace delivered the court summons at the District Court of The Hague. |
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