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by Michael Barbella

The mercury’s gradual climb over the last four decades has not only made the planet hotter overall, it also has triggered an increase in climate change-related lawsuits. The number of such legal actions rose steadily throughout the late 20th and early 21st centuries but skyrocketed in the latter half of the last decade, according to data from the Sabin Center for Climate Change Law at Columbia University. The 736 complaints filed between 2015 and 2020 accounted for more than half of the total cases lodged since 1986.

More than two dozen climate change lawsuits currently blame oil and gas companies for their role in global warming. The complaints contend these companies purposely downplayed fossil fuels’ environmental impacts, “substantially” contributed to global warming, and failed to warn customers and consumers of their products’ risks.

Geoffrey Supran, a research fellow in the History of Science Department at Harvard University, along with Professor Naomi Oreskes, published several studies about ExxonMobil’s disinformation campaign concerning climate change. The first was published in 2017 and the latest in May 2021.

In an interview with The Harvard Gazette, Supran talked about the difference between what scientists at ExxonMobil historically said privately about climate change and what they said to the public.

“ExxonMobil misled the public about basic climate science and its implications. They did so by contributing quietly to climate science, and loudly to promoting doubt about that science,” Supran said. “Our latest work shows that while their tactics have evolved from outright, blatant climate denial to more subtle forms of lobbying and propaganda, their end goal remains the same and that is to stop action on climate change.”

According to the peer-reviewed analysis from Supran and Professor Oreskes, Exxon has known about the dangers of global warming, and that its products were causing it, since the 1970s. In addition, they say that the American Petroleum Institute, the trade association for the oil and gas industry, has known since the 1950s.

Suing big oil

Disinformation charges are central to a 2018 lawsuit, Mayor & City Council of Baltimore v. BP p.l.c., filed by Baltimore legislators, which demands compensation from 26 energy firms, including ExxonMobil, for climate change-related injuries to the city, including rising sea levels. The legal action accuses the companies of exploiting new fossil fuel opportunities, undermining public support for greenhouse gas regulation, concealing fossil fuels’ ecological dangers, and spearheading “denialist campaigns” to hide or confuse their products’ contributing role in climate change. The complaint also contends the firms injected at least 151,000 gigatons of carbon dioxide into the Earth’s atmosphere between 1965 and 2015—roughly 15% of the total greenhouse gas emissions released during that period.

“Accordingly, defendants are directly responsible for a substantial portion of past and committed sea level rise as well as for a substantial portion of changes to the hydrologic cycle [distribution of water], because of the consumption of their fossil fuel products,” Baltimore’s lawsuit states. “The City seeks to ensure the parties who have profited from externalizing the responsibility for sea level rise…and associated consequences of those physical and environmental changes, bear the costs of those impacts on the City…”

Baltimore’s suit stalled because of a jurisdictional dispute. The energy companies, the defendants, want a federal judge to decide the case, believing that federal law would be more favorable to them, but the city prefers a state venue.

In March 2020, the Fourth Circuit Court of Appeals sided with Baltimore, remanding the case to state court. However, an appeal to the U.S. Supreme Court in May 2021 resulted in a ruling in favor of the energy companies. The Court decided that the lower court approached the case too narrowly in reviewing only one of the industry’s arguments for federal jurisdiction.

In its ruling, the Court did not address the merits of the climate change case, saying “…the merits of that claim have nothing to do with this appeal. The only question before us is one of civil procedure.”

The case was sent back to the Fourth Circuit Court of Appeals to decide jurisdiction. That court heard oral arguments in January 2022. At press time, no ruling had been released.

Hoboken under water

While the city of Baltimore was among the first to demand restitution from fossil fuel companies, several other cities have followed suit, including, Annapolis, Charleston, Honolulu, New York City, Oakland, and here in the Garden State, Hoboken. Several states—Connecticut, Delaware, Minnesota and Rhode Island—as well specific counties in Maryland, Washington, California and Louisiana, are also pursuing compensation from oil and gas companies.

Hoboken is seeking hundreds of millions of dollars in compensation for climate change-related costs, including a $500 million mitigation plan to address rain and seawater flooding. City of Hoboken v. Exxon Mobil Corp. charges six energy companies and the American Petroleum Institute with climate change-related violations of both New Jersey common law and the New Jersey Consumer Fraud Act. Specifically, the complaint charges the defendants with half a century of climate change deception, contending they concealed fossil fuels’ harms.

Hoboken blames climate change for the nearly one-foot of sea level rise in and around the city, as well as the doubling of high tide flood days since 2000. In 2012, according to the lawsuit, Superstorm Sandy sent 450 million gallons of storm surge into the nation’s third most densely populated city, submerging 80 percent of the municipality, and stranding 20,000 residents in their homes.

“Storms like this are becoming more frequent and severe because of anthropogenic [caused by humans] climate change, requiring Hoboken to undertake extensive mitigation and adaptation initiatives to protect itself from being regularly inundated by stormwater,” the suit states.

Like the Baltimore case, the Hoboken lawsuit is bogged down in procedural issues over jurisdiction. A federal judge in New Jersey sent Hoboken’s suit back to state court in September 2021; however, the defendants were granted a stay while they appeal the decision to the Third Circuit Court of Appeals.

Suing the government

As climate change cases mount against gas and oil companies, the number of complaints against governments is growing, too. At least a half-dozen suits have been filed against leadership in Alaska, Florida, Montana, Virginia and Washington, mostly by young plaintiffs.

The Alaskan case was dismissed by the state’s Supreme Court in January 2022. Filed more than four years ago by 16 youths, the lawsuit claims the state’s support for fossil fuel production contributed to climate change and violated the youngsters’ constitutional rights.

Despite acknowledging “compelling” climate change concerns, Alaska’s highest court upheld a 2018 lower court ruling dismissing the lawsuit; justices in both state courts agreed the case raised political questions that were best addressed by other branches of government.

The accusations in the Alaskan lawsuit mirror those in Juliana v. United States, a complaint filed by 21 Oregon youths in 2015. The landmark suit charges the U.S. government with violating the youths’ constitutional rights to life, liberty, and property.

The plaintiffs claim the government violated their rights by ignoring the impending harm from climate change, as well as permitting, authorizing, and subsidizing the fossil fuel industry’s activities, which have contributed to increased carbon dioxide levels in the atmosphere.

In a 2018 article for The Conversation, an independent news organization, Mary Wood, a law professor at the University of Oregon, wrote, “…youth plaintiffs are asserting well-established rights under the Constitution’s due process and equal protection clauses to personal security, family autonomy, and property.” Professor Wood, who provided some of the legal reasoning for the Juliana case, continues, “They further assert rights secured by the public trust doctrine, a principle with ancient roots requiring government to hold and protect essential resources as a sustaining endowment for citizens, in the present and the future.”

Both the Obama and Trump administrations fought to dismiss the Juliana case, contending that environmental issues belong in the executive and legislative branches of government rather than the courts. A federal appeals court sided with the government in 2020 and dismissed the Juliana complaint, ruling the youths must take their case to politicians or the U.S. electorate.

“The plaintiffs’ experts opine that atmospheric carbon levels of 350 parts per million are necessary to stabilize the global climate. But, even accepting those opinions as valid, they do not suggest how an order from this Court can achieve that level, other than by ordering the government to develop a plan,” Ninth Circuit U.S. Court of Appeals Judge Andrew D. Hurwitz wrote in the court’s opinion.

Juliana attorneys unsuccessfully appealed the Ninth Circuit Court decision and asked a federal judge in Oregon to reinstate the litigation. Instead, the judge ordered both sides to meet to discuss a settlement. Five months of talks between the youth plaintiffs in the case, their attorneys and the U.S. Department of Justice, resulted in negotiations breaking down in November 2021 and no resolution reached.

Michael Gerrard, one of America’s foremost environmental attorneys and a professor at Columbia University, said the Ninth Circuit dismissed the Juliana appeal based on jurisdictional rule.

“The Ninth Circuit did not agree that the federal government violated the plaintiffs’ rights,” says Professor Gerrard, the founder and faculty director of the Sabin Center for Climate Change Law. “It is the function of Congress and the executive branch, not the courts, to make major policy decisions as to what to do about climate change. The courts do not have the power to provide the relief the plaintiffs are seeking.”

At press time, the attorneys in Juliana were waiting to hear whether their request to file a second amended complaint would be granted. In the meantime, 18 states—led by Alabama—have requested in court documents to join the Juliana case, seeking to obstruct settlement negotiations. Attorneys for Juliana’s plaintiffs filed a brief opposing the intervention of those 18 states.

“The ultimate argument that won in the Ninth Circuit was the issue of whether this is a political question rather than something for the courts to address,” says Michael O’Neil, a law student at the University of Oregon and a research fellow for Professor Wood.

O’Neil explains that bringing the case to the U.S. Supreme Court is not an option at this point because there hasn’t been an actual trial. The case is lingering in the courts on procedural grounds.

“The goal is to get the government in court, get the factual record in there and see what happens,” says O’Neil. “To put the government on trial would be a big victory.”

Professor Gerrard agrees that such a trial could be advantageous to the Juliana plaintiffs.

“A trial would garner a great deal of publicity,” Professor Gerrard explains, “and could cast a harsh light on the actions of the federal government in promoting the use of fossil fuels.”

Discussion Questions

  1. The article discusses litigation against companies in the fossil fuel industry, as well as against the federal government and outlines the arguments for each. Which strategy do you think is more compelling? Explain your answer.
  2. As a young person, how do you feel about the arguments presented by the young plaintiffs in the Juliana case? Do you feel your right to “life, liberty, and property” has been violated due to the government’s inaction on climate change? If so, how? Explain your answer.

Glossary Words
appeal — a request that a higher court review the decision of a lower court.
defendant — in a legal case, the person accused of civil wrongdoing or a criminal act.
electorate—all the people in a country who are entitled to vote.
jurisdiction — authority to interpret or apply the law.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
propaganda — misinformation or half-truths.
remand— to send a case back to a lower court.

This article originally appeared in the spring 2022 issue of The Legal Eagle, Special Climate Change Edition.

Sidebar: Youth Around the World Litigate Climate Change

According to the Grantham Research Institute on Climate Change and the Environment, based in London, more than 1,000 climate cases have been filed worldwide since 2015.

It seems the United States is not the only country being sued by its youth over inaction on climate change. Governments in other countries are landing in court as well, with young people as plaintiffs. Here are two foreign cases with differing outcomes.

Climate change down under

In 2020, eight youth, claiming to represent all those under the age of 18, filed a class action lawsuit in Australia’s Federal Court seeking to block a coal project from moving forward. The plaintiffs in Sharma and others v. Minister for the Environment argued that Sussan Ley, Australia’s Minister for the Environment, had a common law duty of care to young people and that digging for and burning coal would harm those young people in the future.

While the Federal Court of Australia established a new duty of care that included avoiding personal harm to children in May 2021, it declined to issue an injunction for the coal mine project. Then in March 2022, the Full Federal Court of Australia overturned the decision to impose a duty of care on the Minister for the Environment.

“The threat of climate change and global warming was and is not in dispute between the parties in this litigation,” Chief Justice James Allsop wrote in the court’s decision but went on to say that the question was not suited to the courts. “To the extent that the evidence and the uncontested risks of climate catastrophe call forth a duty of the minister or the executive of the commonwealth, it is a political duty: to the people of Australia.”

The eight teenage plaintiffs in Sharma will have to decide whether to appeal their case to Australia’s highest court.

A German court sides with youth

In Germany, nine young people, ranging in age from 15 to 24, brought a lawsuit against the German government over a 2019 climate protection law. The case, Neubauer, et al. v. Germany, was filed in February 2020 and challenged Germany’s Federal Climate Protection Act.

The Act set out emission reduction targets only up until 2030, and not beyond. Carbon emission reductions from 2031 to 2050 were left open and wouldn’t be decided until 2025. The young German activists said that wasn’t good enough, pointing out that their generation would be the one to make the sacrifices to reduce carbon emissions from 2030 to 2050. In April 2021, the German court sided with them.

 “The appellants, some of whom are still very young, have had their liberties violated by the challenged provisions,” the ruling said. “To preserve fundamental liberty, the legislature should have made provisions to mitigate this burden.”

The court ordered the government to have the law revised by the end of 2022 and to specify targets beyond 2030.

Felix Ekardt, lead attorney for the plaintiffs in the case, told Radio Canada his team “got the court to recognize for the first time that freedom must be guaranteed not only here and now, but also globally—that is, across generations and across state borders.”

Germany’s Minister of Economy and Energy Peter Altmaier agreed, calling the court’s decision “epochal for climate protection and the rights of young people.”

Christophe Bals, executive director of Germanwatch, a nonprofit environmental organization, told The New York Times, “This ruling will be a key reference point for all climate lawsuits pending around the world.”—Jodi L. Miller

Glossary Words
appellants
—a person who applies to a higher court for a reversal of a decision of a lower court.
injunction — a judicial order that requires halting a specific action.
overturned —in the law, to void a prior legal precedent.