GOOD NEWS: Climate Lawsuits Against Fossil Fuel Industry Starting to Build Major Momentum

Court victory in Montana and New Cases in California and the European Court of Human Rights Are Hugely Positive Developments for the Planet

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I am happy to report some positive news on the climate front.

After years of floundering in courts largely due to obstruction by the industry, climate lawsuits in the US and around the world finally are starting to make major headway. Following the landmark victory this summer by Montana children in state court in the US, two new mega-lawsuits have been filed in the US and Europe that have the potential to reshape climate policy on a global scale.

First, the state of California recently sued five major oil companies (Chevron, Exxon, Shell, BP, and ConocoPhillips) along with the industry lobbying group American Petroleum Institute for engaging in decades of deception over the disastrous impacts on climate from their operations. The factual evidence against the industry in this case is voluminous; there is simply no doubt that the major oil companies did internal research decades ago that predicted the climate disaster in which we now live. Yet they hid it from us while funding organizations and research designed to sow doubt about global warming in ways that contradicted their own scientific conclusions.

The legal theory behind the California case is based on consumer fraud statutes that punish businesses for lying to their customers. It is roughly the same theory that is being used in several other lawsuits pending in US courts filed against the industry by cities and states looking to cover the costs of climate damage from hurricanes, heat waves, flooding, and extreme weather. What's different is that California is an enormous state with the world's 5th-largest economy. It is also the first oil-producing state to sue the industry.

The significance cannot be overstated.

Because of its sheer size, California has enormous influence over the US and world economies. It often can pass a state law (such as one lowering auto emissions) that immediately has a national impact as industry for efficiency reasons makes the California law the national standard. The state also historically has been "captured" by the oil industry given the importance of oil and gas to the state’s economy. For California’s Attorney General and Governor to take this kind of aggressive litigation posture now indicates just how far the politics have shifted in favor of environmental justice and the planet.

The California case follows by a few months the filing of a landmark federal RICO (or “racketering”) lawsuit against the fossil fuel industry by cities and towns in Puerto Rico that details a decades-long conspiracy of deception on climate, with enormous economic impacts currently being borne by vulnerable communities. In the meantime, several other lawsuits using the climate deception theory (including those from the states of Massachusetts and New Jersey) are moving closer to trial. I believe these lawsuits collectively have the power to rapidly accelerate a phase-out of the industry.

While the U.S. has the lion’s share of global climate litigation — there are currently an estimated 2,500 such cases around the world – courts in other countries also are stepping up. Many of these cases are backed by relatively new research institutes that apply rigorous science to produce evidence supporting the claims, such as the Oxford Sustainable Law Program and the Sabin Center on Climate Change Law at Columbia University in New York.

This week saw a major positive development in Europe on the climate litigation front. An innovative youth climate lawsuit filed in the European Court of Human Rights in Strasbourg threatens to force 32 European countries to implement policies to address the climate crisis in a comprehensive way. The case was brought by six Portuguese youth from an area of the country where 66 people died in wildfires in 2017; the youngest claimant is only 11-years-old. Given that children have the most to lose from global warming, they generally are considered to have greater standing before the law to press climate claims than the average adult. Look for this case and two others before the court (whose decisions are binding on all European countries) to make major headway.

In an interesting sign of how nervous the fossil fuel “establishment” in Europe is over this new lawsuit, the countries being sued by the children sent more than 80 lawyers to argue against the children in an initial hearing on Wednesday. The children are asserting that the failure by European governments to address the climate crisis violates their right to life and other provisions of the European Convention On Human Rights, which was passed in 1953 and is binding on all European nations.

The case is important for many reasons including the enormity of including 32 countries as defendants in one lawsuit. But one that grabbed my attention is that it appears to be the first climate case to fully reframe the climate crisis as an international human rights issue. This potentially allows those impacted by climate disasters to use the entire post-World War II human rights system to go after the fossil fuel industry. This opens the door to all sorts of new legal approaches in this growing area.

I often talk about how all of us share a responsibility to organize so collectively we can make the profound changes needed for life's ecosystems to survive. It is clear the necessary change in the little time we have left before irreversible climate damage kicks in will not come from governments or corporations without massive citizen pressure. The legal action by children from Portugal is another great example of how pressure can be brought into the heart of the very institutions that have the scale to adequately address the crisis but thus far have been hesitant to do so.

It is encouraging that some influential courts are finally beginning to serve as positive actors in support of the climate movement. Successful outcomes like the one in Montana are encouraging more legal actions to be filed; judges who rule in favor of claimants empower more judges to make similar decisions. Ongoing public pressure is vital so judges keep these cases moving in the face of massive resistance from industry. The road ahead will not be easy. The industry is still paying thousands of corporate lawyers to resist, delay, and sabotage these powerful legal claims.

I salute California Attorney General Ron Bonta and his team as well at the Garden Court Chambers in London which is leading the European case. But make no mistake: pressure from the climate justice movement made these cases happen. Let’s keep pushing.