Holding Big Oil accountable for the damages caused by producing and selling fossil fuels is tough from a legal standpoint. So instead, prosecutors are changing their strategy and going after Big Oil's disinformation campaigns instead.
The Courts Ruled in Big Oil’s Favor in New York – Will Other Climate Lawsuits Follow the Same Path?
On January 9th, 2018, New York City became one of the first municipalities to file a lawsuit against BP, Chevron, ConocoPhillips, ExxonMobil, Shell, and other oil companies, seeking damages for their contribution to climate change through the production and sale of fossil fuels. The city argued that the companies had accounted for 11 percent of
all greenhouse gas emissions since the Industrial Revolution and had thus created an “unlawful public and private nuisance” under state law. To support the claim, New York pointed to recent environmental devastation in the city, including spikes in heat waves, sea level rise, and extreme precipitation, all thought to be caused by climate change. The plaintiffs were firm in their assertion that the defendants had already caused “grave harm” that would last for centuries, and thus needed to be held accountable for their actions.
However, just six short months later, a federal district court in New York swiftly dismissed the lawsuit. The court justified its decision on the grounds that greenhouse gas emissions ultimately fall under federal common law rather than state law, given that they have a “transboundary” effect across state lines. Furthermore, the court asserted that even claims under federal common law were superseded by the Clean Air Act, which had left the Environmental Protection Agency (EPA), rather than the courts, with the power to determine lawful levels of greenhouse gas emissions. The plaintiffs appealed the decision, but the district court’s ruling was upheld by a federal appeals court last year.
With similar lawsuits having been filed by state and local governments around the country in the past few years, the question now becomes what influence, if any, the decision in New York could have on their outcomes. Big Oil leaders have celebrated the ruling as a major victory, believing that it will set a precedent. According to Hewitt Pate, general counsel for Chevron, the results of New York City’s lawsuit show “in clear detail why the U.S. climate tort lawsuits are meritless”.
To counteract such a claim, plaintiffs in other cities and states will have to prove that their cases differ substantially from New York; fortunately, they have a key difference at their disposal.
So what’s the difference?
On their surface, the other climate lawsuits all appear quite similar to New York. They all
seek to hold oil companies liable for their role in perpetuating climate change, pointing to negative effects on the public. However, if one digs deeper into the specifics of each case, New York differs from the rest in a major way.
In New York, the City argued that Big Oil was liable for damages due to its “production,
promotion, and sale of fossil fuels”. However, New York did “not concern itself with aspects of fossil fuel production and sale that are unrelated to emissions”, emphasizing this point in its opening brief.
In contrast, the liability claims in all other cases emphasize a notably different type of violation by the companies: their intentional deception of the public. In these cases, plaintiffs have pointed to the targeted misinformation efforts by Big Oil, in which the companies have attempted to paint doubt about the link between fossil fuels and climate change despite evidence suggesting they have been keenly aware of the scientific consensus. The plaintiffs believe this disinformation campaign has constituted a violation of the oil companies’ duty not to lie to “consumers, investors, and the public”. These lawsuits resemble those filed against Big Tobacco companies in the 90s, which alleged they had lied to the public about the health risks of smoking.
In the city of Oakland’s recent lawsuit against Big Oil, the plaintiffs do not reference the
defendants’ production of fossil fuels itself as being unlawful itself; instead, they allege the companies knew the product was hazardous since the 1950s, yet still affirmatively
promoted it to the public. The California Court of Appeals has described this type of claim as “distinct from and far more egregious” than the simple act of producing fossil fuels. Given the clear difference in allegations filed in Oakland and the other remaining cases from those filed in New York City, it is unlikely that the results of New York should be applicable to these lawsuits. Thus, while the oil companies celebrated the decision in New York as a critical and defining victory, the legal battle is far from over – including in New York City.
New York City Readjusts Its Case
On April 22nd, 2021, just days after the appeals court ruled in Big Oil’s favor, New York City filed a new lawsuit against Exxon, Shell, BP, and the American Petroleum Institute– but this time, with a different claim. New York now alleges that the companies violated the City’s Consumer Protection Law by “affirmatively misrepresenting the environmental benefits of various fossil fuel products sold at their gasoline stations in New York City”, with little reference to their negative impacts. In effect, New York has re-adjusted its strategy to become more in-line with the rest of the plaintiffs, taking a focus on Big Oil’s
misinformation efforts rather than its greenhouse gas emissions.
For New York and the other state and local governments, it’s now a waiting game around the country to see which court will make the first decisive ruling. Unlike the first New York ruling, the next court decision could set a major precedent for future cases, given the similarity of the allegations across all lawsuits.
In the meantime, if you would like to learn more about where each of the cases currently stand, click here.