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Around the U.S., over 40 states and municipalities have filed suit against energy companies over their role in perpetuating the climate crises. Five of these high-profile cases went up on appeal regarding jurisdictional issues and last week the Supreme Court declined to intervene. I won’t get into the thrilling details of choice of venue and the exciting process of removing a lawsuit from state to federal court, but suffice it to say that the refusal to remove these lawsuits is generally seen as a negative thing for the energy companies involved.

This is partly because state courts are generally more generous to plaintiffs than federal courts. Additionally, unless more issues are brought that would warrant the intervention of the Supreme Court of the United States, the outcomes in these cases will only be appealable to the Supreme Courts of each individual state.

This increases the odds that at least one of the lawsuits will end in success for the plaintiffs. If the US Supreme Court would have chosen to hear the case, then the litigation would have been on hold pending their review, which would have bought more time for the defendants. This also signals to other states and municipalities that state law claims brought in state courts are unlikely to see intervention from federal courts.

Types of Cases

Moving away from the discussion of jurisdiction – which I know everyone is eager to read more about in excruciating detail – let’s look instead at what these and other climate cases are arguing and the legal underpinnings of their claims. Presently, claims are being brought under four separate legal theories as is laid out by the Center for Climate Integrity:

  • Common Law Torts – These cases are brought under traditional tort theories like nuisance, trespass, and negligence. These theories are popular among municipalities and typically seek economic damages for either the costs incurred to communities due to past damages caused by climate change, or the costs associated with improving infrastructure in order to cope with future climate events.
  • Product Liability – Product liability cases argue that fossil fuels companies marketed and sold products that were unsafe and defective. These cases are often traditionally brought in the context of a class action case. We normally associate class actions with groups of private citizens, but in a case brought by Municipalities of Puerto Rico, the municipalities are themselves alleging to be a class. It is the first climate lawsuit to allege cities as a class of plaintiffs.
  • Consumer Protection – This class of cases is most commonly brought by state attorneys general – as is the case in Massachusetts, Minnesota, Washington D.C., Connecticut, and Vermont. These cases allege that fossil fuels companies and their trade associations illegally engaged in misleading and deceptive marketing practices to promote the sale of fossil fuels. This legal theory has been a popular tool for holding companies accountable: it is the same argument that led to successful action against tobacco companies in the 90s and has been employed in opioid litigation.
  • Racketeering – This claim is unique to the Puerto Rican suit mentioned above, but is worth mentioning as a new approach to climate litigation. The Racketeering Influenced and Corrupt Organizations (RICO) Act is a federal law designed to combat organized crime. In the climate context, Puerto Rico is attempting to use RICO to bring action against fossil fuels trade associations which they allege function as a unit to promote advertising campaigns to generate public inaction around the climate debate.

What this Means

Climate lawsuits are evolving, and we don’t know if or when a successful blueprint will arise that becomes the dominant form of climate litigation. Many of the cases are attempting to narrowly tailor their claims to remain in state courts. Others, like the Puerto Rican case, are not shying away from federal courts and are alleging federal causes of action. However, this scattershot approach is leaving nothing on the table and with a variety of strategies it may only be a matter of time before someone hits pay dirt.

Many questions remain about the future of climate litigation. Presently, litigation in the U.S. is dominated by state and municipal plaintiffs. If they find success, we will likely see more attempts by private citizens and organizations, as well as attempts at novel legal arguments. For those wanting to keep up with climate and other ESG litigation, I recommend checking out our Subject Area: Compliance / Enforcement / Litigation where you can find information on civil litigation, regulatory enforcement, and more.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile