Today
Fri 17 September 2021

Thomas Perrett explores how lawsuits which attempt to sue fossil fuel companies for their environmentally destructive business models could yet prove to be effective, particularly given the parallels between Big Oil and Big Tobacco

Environmental activist group Friends of the Earth won a landmark legal victory earlier this year against Shell, as a Dutch court ruled that the oil giant was compelled to reduce its emissions by 45% relative to 2030 levels.

Shell had previously committed to reducing the intensity of its emissions by 20% by 2030 from 2016 levels, concealing the fact that an increase in its fossil fuel investments would lead to higher overall CO2 emissions.

This case, which according to Friends of the Earth represented the first instance in which a fossil fuel company was legally obliged to align its business models with the Paris Climate Agreement, was part of a concerted effort to hold the fossil fuel industry to account through litigation.

On the same day as the Shell verdict was delivered, Dutch activist hedge fund Follow This compelled three board members at petrochemical company Chevron to address climate change, as investors voted to cut its emissions.


Settling the Science

Taking oil and gas firms to court for their environmentally-damaging business models and disregard for human rights is becoming an increasingly popular tactic in the fight against climate breakdown.

More than 70 climate litigation cases have been filed in 2021 alone, as environmental group the Stop Ecocide Foundation have sought to establish a legal definition of ‘ecocide’ which could allow the International Criminal Court to prosecute fossil fuel companies.

However, the inability of various activist groups to prove the causal connection between climate breakdown and the instances of environmental destruction for which they are seeking compensation has significantly hampered the effectiveness of these lawsuits.

A study published by Nature Climate Change in June found that, across 73 lawsuits targeting the fossil fuel industry, no significant attempt to clearly establish that climate change had caused ecological breakdown had been made. The report concluded that “greater appreciation and exploitation of existing methodologies in attribution science could… improve the prospects of litigation as a route to compensation for losses”. 

However, in the context of a recent Intergovernmental Panel on Climate Change (IPCC) report which described climate breakdown as a “code red for humanity” – outlining how the planet could face increased droughts, floods, and heatwaves as a result of environmental devastation – the evidentiary basis for establishing climate breakdown as the cause of events which have destroyed communities, claimed hundreds of lives, and threaten to submerge entire regions of the world has become far stronger.

Rupert Stuart-Smith, a founding member of the Oxford University Sustainable Law programme which researches climate lawsuits, told Climate Home News that the Nature report “provides, implicitly, a call to arms for the use of evidence of this type”. He also reportedly stated that: “Many of the cases are still unsuccessful for legal, rather than scientific reasons.” 

The progress made in “attribution science” – the methodology linking climate breakdown to the increasing incidents of extreme weather around the world – has bolstered the case for effective climate litigation.

However, there is a significant chance that fossil fuel companies could employ subtle tactics to evade legislation compelling them to reduce their emissions or comply with climate targets. During a private conversation revealed by Greenpeace Unearthed, ExxonMobil lobbyist Keith McCoy acknowledged that the fossil fuel giant publicly backed a carbon tax to avoid more punitive measures. Exxon’s carbon tax proposal was developed by the Republican-led Climate Leadership Council and endeavoured to “make possible an end to federal and state tort liability for emitters”.

Describing carbon taxes as “an effective advocacy tool”, McCoy explained that fossil fuel industry groups and trade associations such as the American Petroleum Institute announced their support for these measures because “they’ve got nothing else, so it’s an easy talking point to say, look I’m for a carbon tax”.

This indicates that, despite efforts to punish fossil fuel companies and their lobbyists through effective litigation which clearly demonstrates the ruinous impact of oil, gas and coal on the living planet, there are still considerable loopholes which major firms such as ExxonMobil can exploit. 


Tackling Disinformation Campaigns 

For climate lawsuits to become an effective means of enforcing accountability and compelling big polluters to comply with the limits of climate treaty obligations such as the Paris Agreement, it is essential for legislators to make use of not only the latest developments in climate science, but other mechanisms by which fossil fuel companies can be brought to justice.

In the US state of Minnesota, for instance, lawsuits have alleged that the campaigns of deception and disinformation led by ExxonMobil and other major companies and trade associations – which have for decades publicly downplayed the severity of the threat posed by climate breakdown despite knowledge of its consequences – amount to fraud. 

Minnesota Attorney General Keith Ellison, who launched a lawsuit against ExxonMobil, stated that the company “directly contradicted what their research found”, claiming that Exxon had violated Minnesota’s laws against false advertising and deceptive trade practices. Focusing on oil and gas firms’ international misleading of the public could change the widespread perception of these companies and yield more successful results in court.

During a 2019 congressional hearing, New York University physics professor Martin Hoffert stated that, as a climate modelling consultant at Exxon during the 1990s, he had worked on eight scientific papers showing the “perceptible influence” that burning fossil fuels was having on the living planet.

“Exxon was publicly promoting views that its own scientists knew were wrong, and we knew that because we were the major group working on this,” he said. “This was immoral and has greatly set back efforts to address climate change.” 

Uncovering the duplicity of major oil companies, and exposing the details of how they have concealed crucial information revealing the harm caused by climate breakdown, is a crucial first step towards effective litigation – as here there are significant parallels with lawsuits against Big Tobacco firms. 

Lawyer Sharon Eubank, who previously led the US Justice Department’s legal team against nine tobacco firms, drew comparisons between the disinformation tactics used by major fossil fuel companies and those employed by the tobacco industry, stating: “The cover-up, the denial of the problem, the funding of scientists to question the science. The same pattern. And some of the same lawyers represent both tobacco and big oil.”

In August 2006, Washington DC Federal Judge Gladys Kessler found “overwhelming evidence” that nine major tobacco companies had conspired to deceive the American people about the health effects of smoking. The parallels between tobacco industry lawsuits and fossil fuel industry lawsuits are striking. Overwhelmingly, tobacco companies had been brought to justice by evidence demonstrating that they had deceptively marketed their products, using chemicals to make them more addictive and failing to disclose their health risks. 

Judge Kessler excoriated the tobacco industry, which she said “survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system”.

The consequences of decades of deceptive marketing by the fossil fuel industry to conceal the devastating effect of climate breakdown have been similarly catastrophic for human life. 

Despite their recent shortcomings, climate lawsuits could yet prove to be an effective tool in the fight against the fossil fuel industry. The increasingly irrefutable nature of attribution science linking human-caused climate breakdown to extreme weather events, in addition to the possibility of holding big polluters to account for their sustained proliferation of falsehoods about climate science, may ensure that environmentalists might still have their day in court.

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