After a long slog, climate change lawsuits will finally put Big Oil on trial

After years of legal appeals and delays, some oil companies are set to stand trial in lawsuits brought by state and local governments over the damages caused by climate change.

Meanwhile, dozens more governments large and small have brought new claims against the fossil fuel industry as those initial cases, filed up to a half-dozen years ago, inch closer to the courtroom.

“It’s all building toward more cases in more places using more legal theories to hold these companies accountable,” said Richard Wiles, president of the Center for Climate Integrity, a nonprofit that offers legal and communication support to communities suing oil companies.

Wiles’ group has tracked 32 cases filed by state attorneys general, cities, counties and tribal nations against companies including Exxon Mobil, BP and Shell. The lawsuits cite extensive news reporting — including investigations by the Los Angeles Times and Inside Climate News — showing oil companies’ own research projected the dangers of climate change decades ago, even as the industry tried to undermine scientific consensus about the crisis.

Those practices, the claims argue, violate a variety of laws including consumer protection, public nuisance, failure to warn, fraud and racketeering. Some of the lawsuits seek to force oil companies to help pay for the damages caused by climate change. Others aim to impose penalties for the use of deceptive business practices. Some want to compel the companies to fund a corrective education campaign about the climate threats they once downplayed.

Given the massive price tag of climate disasters and governments’ adaptation costs, experts say the lawsuits could put the oil industry on the hook for many billions of dollars.

Oil companies have long sought to move such cases to federal court, where they believe national regulations such as the Clean Air Act could supersede local governments’ claims against them. But a string of circuit court and U.S. Supreme Court decisions have ruled that the cases alleging violations of state laws belong in state court, finally clearing the way for jury trials.

Legal experts on both sides say there is a long way to go — perhaps decades — before there is any sort of resolution. But environmental advocates say the first trials could lead to a “tidal wave” of new cases, similar to the nationwide push that forced tobacco companies to pay billions under a settlement reached in the 1990s.

Oil industry backers argue that governments themselves have promoted the use of fossil fuels, and that attempts to hold companies accountable for climate change will hurt consumers.

“We don’t have an economy without oil,” said Wayne Winegarden, a senior fellow at the Pacific Research Institute, a California-based think tank that advocates for free market principles and is supported in part by oil industry-affiliated groups.

“Consumers are aware of global climate change and continue to use oil,” he said. “[The lawsuits] are an underhanded way of the states throwing on carbon taxes without having to take responsibility for it.”

First trials

Some Cities, States Say Big Oil Should Pay for Climate Damage

In the past year, the Supreme Court has issued three denials covering eight cases, rejecting oil companies’ attempts to move them to federal court. The decisions, which uphold lower court rulings, will finally allow cases to proceed in state court, after years of delays over the “venue” question.

Two of those lawsuits, filed by the state of Massachusetts and the city of Honolulu, have moved past oil companies’ motions for dismissal and reached the pretrial discovery phase, when both sides exchange information about evidence they could present in court.

Wiles said the Massachusetts case against Exxon Mobil could reach trial as soon as next year. When the case was filed in 2019, then-Attorney General Maura Healey, now the Democratic governor, said the monetary damages could reach “untold amounts.”

If the Massachusetts suit wins a ruling that fossil fuel companies can be held liable for climate damages, it would prompt a “flood” of cases, Wiles said, as other attorneys general seek money for their states.

The Massachusetts attorney general’s office declined an interview request. None of the industry organizations facing lawsuits — Exxon Mobil, BP, Chevron, Sunoco, Suncor, Shell, ConocoPhillips, Koch Industries and the American Petroleum Institute — would grant an interview.

While all eyes are on the Massachusetts case, which appears on track to be the first climate trial, others are close behind. Boulder County, Colorado, also received Supreme Court validation last year that its lawsuit, filed in 2018, belongs in state court. Oil companies have now filed a motion to dismiss. Boulder Mayor Aaron Brockett said the move is a delay tactic used by the industry in nearly every climate case. If the claim is not dismissed, the county expects its case to move into the discovery phase later this year.

“We already have documentation that the companies involved in the suit knew about the effects of climate change as much as 50 years ago,” Brockett said. “We expect discovery to uncover a great deal more of that evidence. They knew about the damage that their products were causing, so they deserve to pay their fair share.”

Boulder County, he said, is spending millions to prepare for a climate future that is projected to include wildfires, droughts, floods and intense storm events. The lawsuit seeks to force oil companies to pay for the past and future damages caused by climate change.

Attorneys for the oil companies have argued in court filings that Boulder is attempting to use state law to tackle global climate change.

“Plaintiffs’ claims are not limited to harms allegedly caused by fossil fuels extracted, marketed, sold, or used in Colorado,” they wrote. “Instead, Plaintiffs attempt to use this state’s tort law to control the worldwide activity of companies that play a crucial role in virtually every sector of the global economy.”

The most recent U.S. Supreme Court decision, issued in January, denied attempts to move the state of Minnesota’s case, which was filed in 2020, to federal court.

“The fact that this whole avenue of delay and distraction has been shut down is huge,” said Leigh Currie, director of strategic litigation with the Minnesota Center for Environmental Advocacy. Currie helped write and litigate the lawsuit in her previous role with the state attorney general’s office. “We can go forward and actually answer some of the questions that these lawsuits pose.”

Minnesota is experiencing extreme weather, droughts, floods and wildfire smoke as a result of climate change, Currie said. While the state’s lawsuit does not directly seek damages for those harms, it attempts to compel the oil companies to surrender the profits they made as a result of unlawful behavior.

In their petition before the Supreme Court, the oil companies facing the Minnesota lawsuit argued that without federal review, “climate-change cases will continue to proliferate in state courts, resulting in the application of the laws of fifty states to climate change-related disputes, in conflict with the national-security, economic, and energy policies of the United States.”

‘A war of attrition’

The cases illustrate the arduous legal path just to get before a jury.

“[Oil companies] have an open checkbook, and they’re making record profits,” said Pat Parenteau, an emeritus professor of environmental law at Vermont Law School, who also serves in an informal advisory group that supports some of the governments’ cases. “The real test for the plaintiffs is whether they can compete and fight tooth and nail for years. It’s a war of attrition. That’s what Exxon’s counting on.”

The steep cost of taking on the oil industry has kept some states from joining the fray. But climate advocates say they’re seeing increasing momentum after the Supreme Court wins. Chicago filed a lawsuit this year. Last September, California became the largest government to file a lawsuit, seeking to force oil companies to pay into a fund that would help pay for climate adaptation efforts. Democratic Gov. Gavin Newsom’s office told Politico that the earlier victories gave California confidence that its case would be heard in state court.

“Having California in the mix could meaningfully alter the course of climate litigation,” said Hannah Wiseman, a professor of law at Penn State University’s College of Earth and Mineral Sciences. “They have the resources for this type of litigation that other states have been working to amass.”

Neither Newsom’s office nor Democratic Attorney General Rob Bonta’s office granted interview requests.

New law pushes Washington cities and counties to plan for climate change

New York City, which filed its own lawsuit in 2021, is among the cases to cite laws that penalize deceptive advertising. New York argues “greenwashing” ads from oil companies portray them as climate leaders even as they continue to increase fossil fuel production.

“Part of the relief we are seeking is to stop the defendants from making false and misleading statements to New York City consumers,” said Hilary Meltzer, chief of the city’s environmental law division. The suit also seeks financial penalties.

Meanwhile, a pair of tribal nations in Washington state filed lawsuits late last year, citing the costs of moving to higher ground as rising sea levels threaten their communities. Environmental advocates say the entry of tribes — many of which are facing the worst effects of climate change — is a welcome development in the legal fight.

The Washington cases, brought by the Makah and Shoalwater Bay tribes, are among those seeking damages for specific harms. Another, filed by Multnomah County, Oregon, cites the deadly 2021 “heat dome” event that brought record temperatures to the region. And a pair of cases brought by Puerto Rico municipalities seek damages for the 2017 hurricane season.

So far, the climate cases have been brought by governments with Democratic leaders, as Republican officials remain largely hostile to climate action and more friendly to fossil fuel interests. Advocates say that political dynamic means such lawsuits will likely be limited to blue states for the near future. But they noted that red states are also in the path of climate disasters.

“Money talks,” said Wiles, with the climate group. “If New Jersey has a multibillion-dollar decision against Big Oil, why wouldn’t North Carolina say, ‘Damn!’?”