Climate Litigation Spreads across the United States

With hurricanes in the Gulf South and wildfires in the West, the intensifying impacts of climate change have been inescapable as summer turns to fall. Summer 2020 also brought a wave of new climate lawsuits against the fossil fuel industry, including several firsts: the first suit in the South (Charleston, South Carolina); the first suits to name the American Petroleum Institute–the main US oil and gas industry lobby group–as a defendant (Minnesota, Delaware, and Hoboken, New Jersey); the first cases seeking disgorgement of corporate profits gained through illegal acts (Minnesota and Connecticut). Many of these lawsuits highlight the disproportionate impact of climate change and fossil fuel company misconduct on low-income communities and communities of color, where climate impacts are often felt first and resources to handle adaptation and mitigation are scarce.

Despite a speed bump with last week’s Supreme Court decision to hear an appeal from fossil fuel company defendants in Baltimore’s climate lawsuit, litigation as a strategy for holding fossil fuel companies accountable for climate damages and fraud continues to develop and spread. And science is vital to inform climate litigation. That’s why UCS is launching the Science Hub for Climate Litigation—not a moment too soon. Read on to learn how we and our partners are connecting scientists, experts, legal scholars, and practitioners working at the nexus of science and climate litigation.

Climate justice is racial justice

Climate impacts hurt low-income communities and communities of color first and worst. Here are a few details cited in recent lawsuits:

• According to Charleston’s complaint, “The City is expected to endure 30 additional days per year of temperatures higher than 95°F by 2070… Due to systemic inequities, people of color and those living in poverty tend to be particularly vulnerable to extreme heat events.”
• Delaware’s lawsuit notes that “The urban heat island effect, which affects cities including Wilmington, exacerbates the health impacts of extreme heat on communities of color and low-income communities in urban areas. Delawareans who face housing insecurity are also more vulnerable to the extreme temperatures and air pollution exacerbated by climate change.”
• Hoboken’s complaint points to the inequitable impacts of successive storms that slammed the city in 2011 and 2012. “Communities of color and those economically marginalized are at a particularly high risk; for instance, during Sandy, some of the most vulnerable citizens of Hoboken were trapped in the Hoboken Housing Authority as storm waters rose in the streets. Hoboken’s then-mayor described how Sandy filled up the City ‘like a bathtub.’ Both storms were as intense as they were because of anthropogenic climate change.”
• Washington, DC’s lawsuit states that, “The District will continue to experience flooding, extreme weather, and heat waves exacerbated by climate change, with particularly severe impacts in low-income communities and communities of color.”
• Noting that Minnesota has warmed even more than the global average temperature increase of approximately two degrees Fahrenheit due to human-caused climate change, Minnesota’s complaint warns that, “Warming will continue with devastating economic and public-health consequences across the state and, in particular, disproportionately impact people living in poverty and people of color.”

By holding polluters accountable for climate harms, climate lawsuits are a means to advance racial and economic justice.

Fossil fuel defendants’ delay tactics

When it comes to climate action, fossil fuel companies and their surrogates are proven experts at denial and delay. Since the first lawsuits against major fossil fuel companies over climate damages were filed by California municipalities in 2017, ExxonMobil, Chevron, BP, Royal Dutch Shell, and other fossil fuel industry defendants have been pulling out all the stops to keep these cases from being heard in state courts where they were filed.

Ads with this message ran in the print and online versions of the Hartford Courant in September, after Connecticut Attorney General William Tong sued ExxonMobil for climate deception.

The last thing the fossil fuel companies want is for evidence of their deception and the harms they knew their products were causing to be aired in courtrooms across the nation. They remember what happened when just one state’s lawsuit to recover health care costs from the tobacco companies went to trial: a multibillion-dollar settlement, dissolution of the industry’s junk science arm, an end to advertising and promotion targeting kids, and release of millions of pages of previously secret internal documents.

Communities pursuing climate justice had been riding a winning streak, with multiple federal circuit courts sending the cases back to state courts to consider claims of public and private nuisance, failure to warn, and violation of consumer protection laws. But it wouldn’t be 2020 without an emotional roller-coaster ride—so buckle up and hold on.

In late September, President Trump nominated federal judge Amy Coney Barrett to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. If she is confirmed, there are serious concerns that the Supreme Court could become an obstacle to climate action—legislation, enforcement of regulations, and litigation challenging the federal government and corporations.

With the nomination pending, last Friday the Supreme Court agreed to take up the fossil fuel company defendants’ appeal in Baltimore’s climate liability case, filed two years ago. It’s an arcane procedural issue, and a transparent attempt by Big Oil to delay the inevitable: justice for communities on the frontlines of the climate crisis in a court of law.

Introducing the UCS Science Hub for Climate Litigation

Climate litigation is not going away—in fact, it’s just revving up. Our organization is at the forefront of informing climate litigation with independent science and timely research. Many of the US lawsuits seeking to hold fossil fuel companies accountable for climate damages and fraud cite our research.

Litigation-relevant research comes from a wide range of disciplines and includes evidence from the lived experience of communities. Key disciplines include extreme event and source attribution science (which attributes global changes to emissions traced to individual fossil fuel companies), and social science research (such as a peer-reviewed content analysis of ExxonMobil’s climate change communications by Geoffrey Supran and Naomi Oreskes).

While this blog focuses on lawsuits against fossil fuel companies by US municipalities and states, the field of climate litigation is broad and growing. In addition to cases that aim to hold corporations accountable for their contributions to climate change, climate litigation also targets governments at all levels in the US and around the world—seeking to compel them to protect the rights of people, future generations, and the environment from disruptive climate change.

For more information, visit the Science Hub webpage and watch the recording of a webinar we sponsored in partnership with Columbia University’s Earth Institute, the Sabin Center for Climate Change Law at Columbia Law School, and the Climate Science Legal Defense Fund.

Originally published in Union of Concerned Scientists.