It’s been six years since California cities started taking the trend Big Oil to court for misleading the public about the consequences of burning fossil fuels. The move followed investigations showing that Exxon and other companies have known about the dangers of rising carbon emissions for decades but have publicly downplayed the threat. Today, approx 30 lawsuits have been filed across the country as cities, states and indigenous tribes try to make the industry pay for the costs of climate change.
Until recently, most of these cases were stuck in limbo. Oil companies tried to move them from the state courts in which they were filed to federal courts, a more business friendly environment. But just in the past year the Supreme Court refused to hear their arguments to relocate these cases on three separate occasions, most recently paving the way for Minnesota’s case to proceed in state court. This means that executives from Exxon Mobil, BP and other oil giants will soon have to defend their actions in front of a jury.
“Last year was a very pivotal year in terms of getting past the industry’s big push and their delay tactics,” said Alyssa Johl, vice president for the legal program at the Center for Climate Integrity, an environmental advocacy organization that provides support for these cases. “That issue and that effort has been put to rest, and now they have to face the music.”
The long delays might have strengthened the legal arguments against fossil fuel companies. Researchers have uncovered more details about what oil companies knew about climate change and when, and the science linking fossil fuel emissions to climate disasters has matured, arming cities and states with more evidence. All the while, the effects of climate change – the heat waves, the flames, the smoke from wildfires – have only become more obvious and more expensive. Last year the US had a billion dollar disaster every two weeks.
“With each month and with each year that these cases come to rest, the impact on communities only grows,” said Delta Merner, the chief scientist for the Union of Concerned Scientists’ Litigation Center. “I think that’s an important context for understanding these cases, and for understanding the additional cases that have been filed over the last six years.”
This may explain the spread of lawsuits from coastal cities and states to inland areas such as Minnesota, Colorado and most recently, Chicago. With the third largest city in the country suing BP, Chevron, Exxon Mobil and other oil titans for lying about climate change, a quarter of Americans now live in cities and states that are taking fossil fuel companies to court, according to the Center for Climate Integrity.
One of the longest-running cases, filed in 2019 by Massachusetts against Exxon Mobil, is already in the process of “discovery,” the last major step before a trial. At this stage, both sides try to uncover evidence that could help their case in court. The discovery process could uncover further details of oil company deception, such as what individual CEOs or other company executives did with the information they learned about climate change, Johl said.
“That’s really what the industry fears the most,” Johl said. “They don’t want anyone digging through their archives and revealing their deepest thoughts and secrets.” Much of what the public has learned about the tobacco industry’s attempt to cover up, for example, the link between lung cancer and smoking, comes from the discovery process, which was made public as part of a large settlement in 1998, when Philip Morris, RJ Reynolds and other tobacco giants agreed to pay states $206 billion over the next 25 years.
The discovery phase of the Massachusetts case is expected to end later this year, and it could go to trial as early as 2025, Johl said.
However, oil companies have plans to fight back. In response to the new lawsuit from Chicago, industry representatives characterized the lawsuits as a “waste of taxpayer resources” and argued that climate change should be addressed by Congress, not the courts. “They’re going to raise issues every step of the way and raise defenses every step of the way,” Johl said.
Another case at the front of the pack is Honolulu’s suit seeking damages from Exxon Mobil, Chevron and Sunoco, among others. In October the The Hawaii Supreme Court dismissed the companies’ appeal to throw out the suit and clear the way for a trial. Last week the companies asked the Supreme Court to throw out that ruling.
The industry’s current argument in the Honolulu case (and others) is that these lawsuits deal with the broader issue of emissions and pollution, and that the federal Clean Air Act preempts any claims brought by cities and states. So far, this approach has met with modest success. In January, Delaware’s Supreme Court oil companies’ motion denied to dismiss the state’s case against them while making a few concessions, including that out-of-state emissions were the purview of the Clean Air Act, outside the bounds of state law. However, emissions originating in Delaware were fair game.
As these climate cases have slowly begun to move forward, recent months have brought lawsuits from California, cities and tribes. Last September the state of California claimed that oil companies fund efforts to recover from extreme weather. In December, the Makah and Shoalwater Bay tribes along the coast of Washington state the first native american tribes to take oil companies to court over the costs of responding to climate-related risks of rising seas, flooding and ocean acidification. Meanwhile, added Hoboken, New Jersey, and a collection of cities in Puerto Rico racketeering lawsuits into the mixalleging that oil companies were involved in a conspiracy of deception.
New research has made it harder for oil giants to say they could not have known the outcome of burning so much fossil fuel. A study published last year in the journal Science found this Exxon’s scientists predicted the effects of climate change with astonishing accuracy in the 1980s. Exxon’s models have closely matched actual temperature changes over the past few decades.
Then there is the booming field of scientific inquiry linking climate change to extreme weather events. Researchers are now able to quantify how corporate emissions fueled climate disasters, a critical development for these cases, Merner said. “This is the cutting edge of where science is moving – to be able to not only look at these global averages, but to see what’s happening in the region.”
A study Last year co-author Merner found it 37 percent of the forests burned in the western United States since 1986 can be linked to carbon pollution from a group of 88 of the world’s largest fossil fuel producers and cement manufacturers. Last June, Multnomah County — home to Portland — cited the research in its lawsuit against oil companies over their contributions to a deadly heat wave that hit the Pacific Northwest in 2021. In newer cases, such as Multnomah’s and those brought by indigenous tribes, the oil industry is sticking to its strategy of trying to move the case to federal courts. , according to Margaret Barry, who maintains a climate litigation database at Columbia Law School’s Sabin Center.
The new and improved science linking climate change to weather disasters has been a game changer for all of these cases, Merner said. “We can’t sit back and argue whether climate change played a role in extreme weather or public health problems we face today, because attributional science shows that it does and can calculate what that role was.”
