Earlier this month, the state of California announced it is suing five of the world’s largest oil and gas companies, alleging that they engaged in a “decades-long campaign of deception” to convince consumers that their product was harmless. The truth couldn’t be further from the companies’ claim, and the state hopes a courtroom will see that too. While notable for its scale and potential to set a history-making precedent, this is not the first case of its kind.
Since 2015, the cumulative number of climate change-related cases filed at local, state, and national levels worldwide has doubled to more than 2,000. Most of the defendants in these cases are either governments or fossil fuel profiteers, which plaintiffs generally claim have tacitly supported the interests of Big Oil or captured and exploited a customer base into dependency on a product that will slowly kill them.
The courtroom is not generally a place where climate wins or justice happens. The birth of the environmental justice movement in the 1980s in Warren County, North Carolina, and later across the American South paved the way outside the courts. The Black communities that fought racist placement of amenities, like landfills and toxic-waste dumps near school and poor neighborhoods, illustrated how people have always created the conditions for possibility and change, and how they have ultimately shaped justice.
Since the environmental justice movement first emerged, the consequences of climate change have ballooned in all directions. Meanwhile, government funds are stretched thin, unable to relieve the impacts and shape-shifting threats of the floods and hurricanes that are becoming features of life in places like the Gulf Coast. The rapidly changing climate system impacts first and worst the very same communities that laid the groundwork for environmental justice activism four decades ago. The problems have gotten more extreme, more expensive, and with each passing season, more intractable. Without substantive government action, activists seek redress from the courts, though there are different opinions on what the benefits might actually be.
There’s a risk, some legal advocates say, in seeking remedies through the courts, which, in the material world, change very little. After all, critics argue, what good would it do if the government were found guilty of harm but were relieved of paying for that harm? Others say these legal challenges are beneficial because they mirror the approach seen in climate policy organizing: imagining the world as it could be rather than accepting it as it is and building a political pathway based on those goals.
Whether the judicial system is fit to handle the intricacies of climate science, complexities of climate organizing, and hypocrisies of anthropogenic climate change in the U.S. remains to be seen. Climate organizers say that shifting away from a fossil fuel-based economy will require divestment not only from the current economic system, but from a status quo that vaunts individualism and sees humans as somehow separate from the environment. The judicial system is also historically conservative and slow moving. The recent case, Held v. Montana, is certainly an outlier. A Montana District Court judge ruled in August that the state government violated the constitutional rights of the state’s young people by destabilizing the climate system through eager support of the fossil fuel industry. Historically, courts refused to take similar youth cases, claiming that the issue was one for the legislative and executive branches to solve. A case in Hawai‘i is the only other youth case with a trial date set.
Courts hesitate to create new precedent and relish in formal displays of power and knowledge. The overarching system is tied to its role in taking land from Indigenous peoples to create farms, universities, and state and federal lands. Courts deal with discrete harms and offer limited solutions. Climate change, as a set of interlocking and mirroring harms, is almost too fast and too superfluous for the courts to handle. Courts work slow. Nonetheless, the courts may be the place where climate futures are decided.
The U.S. Climate Change Litigation Database, a project of Columbia Law School, keeps track of every climate change-related lawsuit. Cases are sorted by claim type—federal statute, amendment, or state law, for instance. Analysis by the London School of Economics and Political Science, relying on data from the litigation database, sorts cases along lines of what the cases aim to achieve: accountability for emissions targets or fossil fuel permitting, claims of human rights violations, or redress for climate damages, to name a few. Of the 2,002 global climate cases, 1,426 have been filed in U.S. courts.
“A lot of the question comes down to … whether courts should be constraining governments in the course of developing climate policy,” said Catherine Higham, a policy fellow at the London School of Economics and Political Science who coordinates the Climate Change Laws of the World project.
In the U.S., business enjoys plentiful freedoms, though climate cases attempt to push back against a dynamic that allows corporations to prioritize their interests over people. A 2020 case filed in New Jersey’s state court system by the city of Hoboken against Shell, BP, ExxonMobil, and the American Petroleum Institute (API), among others, alleges these companies engage in consumer fraud. That same year, Honolulu filed a similar case under legal claims of public nuisance, negligence, failure to warn, and trespass. In 2023, Oregon’s Multnomah County, which includes Portland, filed a lawsuit against API, McKinsey & Co., Koch Industries, and other Big Oil corporations for deceiving the public into purchasing a product that contributes to global warming and caused a deadly 2021 “heat dome.” One attorney from Illinois is bringing a lawsuit against major oil corporations on behalf of 16 municipalities in Puerto Rico to hold corporations accountable for climate change-related hurricanes and storms brought about by the burning of their product.
Most recently, California Attorney General Rob Bonta filed a lawsuit on behalf of the state against oil companies like ExxonMobil, Shell, ConocoPhillips, and API for similar reasons. The state of 40 million people is expected to face increasingly dire wildfires, flooding, sea-level rise, and drought.
“The scale of the devastating public nuisance created by Defendants’ egregious misconduct is truly staggering, and California will be dealing with the consequences of this misconduct for many generations,” according to the lawsuit.
“These climate liability cases brought by governments against Big Oil boil down to a simple question: Shouldn’t the companies that caused the problem and lied about [them] for decades pay to clean up their mess?” said Corey Riday-White, managing attorney at the Center for Climate Integrity. “That’s a very well-worn concept in American courts, and it’s why fossil fuel companies are so scared of these cases: They know the evidence against them is strong and that they could be liable for billions in damages.”
In suing to pay for the damages of climate change-related disasters, such as the case in Puerto Rico, or to adapt to rising sea levels and more severe weather, like the Maui County case filed in 2020, plaintiffs are asking that Big Oil pay for the damage it’s caused. After all, companies like Shell predicted decades ago that sowing doubt among the public as to the causes of climate change would shift responsibility back onto overextended local governments. Indeed, Maui County has already paid $5.5 million to repair a wall protecting a waste facility against sea-level rise.
The framework of many of these cases isn’t so different from the approach legal teams took against Big Tobacco in the early 2000s. As outlined by Rhode Island Democratic Sen. Sheldon Whitehouse, who is also the state’s former attorney general, “Serious action on climate—a transition to clean, low-carbon energy—threatens to cut into polluters’ market and profits. The match between the fossil fuel industry and big tobacco is pretty good in terms of the business risk presented if the public were really aware of the harm. They have a motive to deceive.”
It would be an understatement to say that corporations’ central strategy of engendering confusion and doubt among the public was merely a success. By downplaying the known impacts of extracting and burning fossil fuels, Big Oil companies helped create a culture and economy that runs, quite literally, on their product. For years, these companies have lobbied for tax benefits, blocked climate-minded legislation, and otherwise escaped accountability for their harm.
But in the courtroom, attribution science is helping to shed light on the connections these companies would otherwise like to keep quiet. Attribution science is an emerging field that allows us to detect, identify, and quantify the contribution of specific emission sources to a wide range of climate impacts.
“I think that science has a clear role to play in these cases, and we’ve seen it playing a role already,” said Carly Phillips, a research scientist with the Science Hub for Climate Litigation at the Union of Concerned Scientists.
It’s a field of science that demonstrates how climate change has doubled the cumulative acres of forest fires since 1984. Source attribution is especially helpful, connecting the path of “forever chemicals” in the U.S. to one manufacturing plant in Alabama or tying global ocean acidification to the 88 largest carbon producers. Attribution science is also how we know that the top five global meat and dairy companies produce greenhouse gas emissions at levels on par with or higher than ExxonMobil, Shell, or BP.
Attribution science helped sway the judge presiding over Held. The case will mark history—not only because of the ages of the aggrieved (the youngest was 2 when the case was filed in 2020), but also because of what it will likely make possible for other climate cases.
For two decades, environmental advocates in the U.S. brought similar environmental cases that indicted the system of public-private partnership between government and extractive industry to court, to no avail. This time, however, a court ruled that a clean and healthful environment, a promise enshrined in Montana’s Constitution, was a part of a “life-support system” to which the 16 young plaintiffs were entitled.
Even as the kind of science used in the Held case gets better and the public appetite for accountability becomes more forceful, there’s still a question of what to ask for as the result of these climate cases. Would it be enough for emitters to halt their profit-motivated actions? Should they pay damages or for repairs? What might that dollar amount look like–especially considering that money can only go so far. After all, a permanent enjoinment of the Montana Environmental Policy Act limitation—the statute that prevented the state’s agency from considering climate costs of extraction permits—won’t bring back glaciers, healthy forests, or adolescence free of wildfire, flooding, and the knowledge that government didn’t do what it could to protect you. In the Held case, many of the young plaintiffs talked about the mental health struggles they lived with as a result of climate impacts and government negligence.
These questions—what climate repair should look like and who will pay for it—have different answers depending on whom you ask. Held, for instance, asks that certain state actions be found unconstitutional and that the government take steps toward a stable climate system.
This doesn’t go far enough for Carter Dillard, the policy director at the Fair Start Movement. Asking for a habitable planet is “relatively modest” and inadequate in the face of a rapidly growing and widespread human rights issue, Dillard said. He worries that without a clear demand for redistribution of wealth, “that kind of low ask probably is going to benefit people on top and harm people without resources.”
Dillard’s treatise is especially intriguing considering that climate change, often thought to be a crisis created by humankind, is really a crisis created by and for the benefit of a few. In the U.S. the wealthiest 10% are responsible for 40% of greenhouse gas emissions. The same goes for income by country, with the richest and most militarized countries emitting and polluting the most.
So far, the vast majority of climate cases call for financial redress from private companies rather than repayment from governments, whose central role includes the collection and distribution of funds.
“I think concentrations of wealth and power will do things to protect themselves,” Dillard said. “Whether it’s setting a low standard for climate policy or avoiding power sharing with an organization.”
It’s also a pretty popular idea. According to research conducted by the Center for Climate Integrity, a majority of voters—91% of Democrats, 78% of Independents, and 73% of Republicans—approve of having oil and gas corporations pay for climate damages. After learning about decades of industry deception, an average of 83% of voters want to hold corporations accountable
Environmental justice lawyers told Prism that in the context of the larger—and growing—environmental and climate justice movements, what happens in the courtroom isn’t the end goal, it’s one part of the strategy.
