There are at least 20 pending lawsuits filed by cities and states across the United States, alleging that major players in the fossil fuel industry have misled the public about climate change to devastating effect.
While the exact allegations vary from case to case — from securities fraud to nuisance, negligence and tort — most focus on the argument that companies have failed to disclose what they know about their potential environmental impact.
It’s a relatively new legal tactic in a long-running argument from industry critics: Oil and gas companies should be held accountable for minimizing the impacts of fossil fuels and halting government action on climate change – claims examined in a three-part documentary series from FRONTLINE Big oil power.
Karen Sokol, professor of climate law at Loyola University in New Orleans, described the suits as “particularly distinctive around the world, in that they are the only ones, to date, that have sought to hold the industry accountable for their organized and systematic climate-related disinformation on the campaign trail.”
While the United States remains at the forefront of this approach, the Vancouver City Council voted on July 21 to fund a 2023 class action lawsuit against the oil majors, making it the first Canadian city with specific plans to do so.
Prior to the current wave of litigation, the court system was not seen as a viable path to accountability, a handful of independent legal researchers told FRONTLINE. So far, proponents predict a long way into the future.
“The underlying tension is: Is this appropriate for the courts to do or not?” asked Holly Dormos, professor of environmental law at the University of California, Berkeley.
Beginning in Rhode Island in 2018, attorneys general in states including Massachusetts, Connecticut, and Minnesota have sued for oil and gas industry violations of local consumer protection laws, following similar lawsuits filed by some California cities early in 2017.
Several lawsuits point to the same defendants, including Exxon Mobil, Chevron, BP and the lobby organization American Petroleum Institute (API).
What are the plaintiffs saying?
The claims are based on old domestic laws and common law torts that were first used extensively in consumer protection litigation since the 1960s and more recently in tobacco and pharmaceutical litigation. The key to these laws, Sokol said, is that companies can be held liable for their failure to warn consumers of known potential risks.
In the lawsuits, states and cities assert that the fossil fuel industry’s failure to warn consumers about the contributions of its products to climate change is already having a negative impact on societies.
What do the defendants say?
Some of the defendants filed the lawsuit, and denied that the oil and gas companies violated state laws. But most argued that the cases should be tried in federal court.
“[C]Federal policy is federal and regulatory in nature — not one that can be decided by state courts,” Phil Goldberg, special counsel for the Climate Litigation Group’s Manufacturer Accountability Project, told Pew in April.
When connected to this story, the API referenced FRONTLINE in its response to Big oil power: that critics have been “picking up information for decades to support a predetermined misleading narrative”.
Why now: a case study
“One of the things that may have caused this wave of lawsuits is that cities have realized in the last 15 years that climate change is costing them money,” said Dormos, of Berkeley. This is especially true of cities, counties, and coastal states, where many of these cases come from. I guess just looking for any way to deal with this problem sent them to the state courts.”
In September 2020, the city of Hoboken, New Jersey, filed a lawsuit in state court against ExxonMobil and 12 other entities — including BP, Shell, Chevron, Conoco Phillips, and API — citing the devastation caused by Hurricane Sandy in 2012.
The lawsuit alleges that under the city’s Consumer Protection Act, defendants are liable for climate change-related damages associated with the sale of fossil fuels. The lawsuit seeks to recover hundreds of millions of dollars that prosecutors say is related to these damages, in addition to the $140 million the city has spent in the past decade on climate resilience projects, including building waterfront flood barriers and underground cisterns to manage excess water.
“We don’t think a courtroom is the right place to tackle climate change…”
– Shell spokesperson
“As a coastal community, Hoboken has felt first-hand the effects of climate change, including rising sea levels and frequent storms,” Mayor Ravi Bhalla said in a 2020 announcement regarding the lawsuit. “The major oil companies have engaged in a decades-long campaign of misinformation that has contributed to global warming, which has disproportionately affected our population.”
In response to questions about the lawsuit, a Shell spokesperson told FRONTLINE: “Tackling a challenge as big as climate change requires a truly collaborative approach at the community level. We don’t think the courtroom is the right place to tackle climate change, but it’s smart policy from the government, backed by action From all business sectors, including ours and from society, it is the right way to reach solutions and drive progress.”
A BP spokesperson said the company does not comment on the pending litigation. Chevron and ConocoPhillips did not respond to requests for comment.
ExxonMobil: The only accused
Also in September 2020, Connecticut Attorney General William Tong filed a lawsuit in state court against ExxonMobil – one of the few cases in which a single accused has been named.
ExxonMobil sold oil and gas, but it also sold lies about climate science. Exxon Mobil recognized that continuing to burn fossil fuels would have a significant impact on the environment, public health and our economy. However, it chose to deceive the public,” Tong wrote in a statement emailed to FRONTLINE.
“ExxonMobil made billions of dollars during the decades-long campaign of deception that continues to this day. Connecticut citizens should not have to incur the expense of strengthening our infrastructure to adapt to the real consequences of climate change.”
ExxonMobil refused to give FRONTLINE an interview. In a written response, the company said: “For more than 40 years, we have supported the development of climate science in partnership with governments and academic institutions. ExxonMobil has never had any unique or superior knowledge about climate science, let alone any knowledge that was not available to policy makers or the public. “.
Last year, Exxon Mobil announced that it would invest $15 billion in initiatives — developing carbon capture and storage, as well as biofuels — that aim to reduce greenhouse gas emissions.
So far, only one experience
Almost none of these cases made it to trial, and the case that was made was dismissed. In his 2019 ruling on that chapter, New York Supreme Court Justice Barry R. Ostragher found that the state had not provided sufficient evidence to show that ExxonMobil intentionally misled investors about known climate change risks.
“Nothing in this opinion is intended to absolve Exxon Mobil from liability for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products,” Ostrager wrote. “But ExxonMobil is in the energy business, and this is a securities fraud case, not a climate change issue.”
Almost all cases are still embroiled in battles over jurisdiction, with the typical course looking something like this: A lawsuit is filed in state court, alleging a violation of common law or consumer protection laws. The defense is requesting that the lawsuit be moved to federal court, citing federal regulations on greenhouse gas emissions and the international sale of oil and gas.
Industry critics describe the move to federal court as a delay tactic. Although consumer protection laws exist at the federal level, they are generally seen as less favorable to plaintiffs. The plaintiffs then appeal, seeking to return to state court.
Some recent federal court decisions appear in support of state jurisdiction.
In February, the US Tenth Circuit Court of Appeals sent a case originally brought by the city of Boulder and San Miguel County, Colorado against ExxonMobil and Suncor Energy to state court, dismissing several defensive arguments, including that the case belonged in federal court due to the dissolution of The Clean Air Act replaces state law.
Circuit Judge Carolyn McHugh wrote: “The CAA is designed to provide a ground upon which state law can build, not a ceiling to impede supplemental state law proceedings.”
“This issue is about whether oil and gas companies are misleading the public about the dangers of fossil fuels….”
– United States Ninth Circuit Court of Appeals Judge Ryan D. Nelson
In April, the US Fourth Circuit Court of Appeals ordered that a case brought by the city of Baltimore against BP, ExxonMobil and 24 other oil companies back to state court – a decision it upheld in May, following an appeal by the defense.
The impacts of climate change undoubtedly have local, national and international repercussions. “But these consequences do not necessarily confer jurisdiction over the federal courts at all,” Chief Justice Roger Gregory wrote in the decision.
Most recently, the 9th US Court of Appeals ruled in July that lawsuits from the city and county of Honolulu and Maui County against a number of oil companies, including Sunoco and Exxon Mobil, should be tried in state court.
Circuit Judge Ryan D. Nelson wrote in the decision: “This issue is about whether oil and gas companies are misleading the public about the dangers of fossil fuels,” not about federal issues. “Consequently, we refuse to extend federal jurisdiction.”
Neither Sokol nor Doremus saw the June 30 US Supreme Court ruling West Virginia v. Environmental Protection Agencywhich reduced the EPA’s authority to regulate greenhouse gases, affecting these lawsuits.
But if other cases bring Baltimore and Colorado back to state courts, Sokol said additional states may file lawsuits: “I doubt there are some [states] who are watching closely.
Even with the recent gains, the plaintiffs face a long battle. Similar to the Baltimore case, the defendants in the Minnesota case indicated that they would appeal. “They are already planning to petition the Supreme Court,” Sokol said.
Success in these types of claims has historically been difficult. In the case of Big Tobacco, the 1998 settlement forced tobacco companies to pay billions of dollars in health care costs — but only after nearly four decades of litigation.
Despite the odds, Sokol sees these examples as reasons for hope. “I think the opioid and tobacco cases prove that state courts are perfectly capable of adjudicating deceptive marketing cases,” she said.
“It’s David and Goliath’s final battle,” said Richard Wills, president of the advocacy group the Center for Climate Integrity.
Watch Big oil power In its entirety:
Part One, Denial
Part Two, Doubt
Part III, the delay
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