Cities and States Stand Up to Big Oil

By Gabriela Carson, November 8, 2022

Local and state governments have begun to take oil companies to task for their decades of deceit.

Local and state governments are seeking to right the wrongs of those who have intentionally misled the public for decades through a new tide of climate lawsuits. While there have been a number of strategies taken, the plaintiffs ultimately intend to seek justice on behalf of those most affected by the climate crisis. The powerful entities whose actions have only furthered our environment’s deterioration must be held accountable. The fight for climate justice requires an interdisciplinary approach, but we must still pursue the ideal legal strategy to effectively fight climate change. This article shines a light on what is occuring in the courts to protect our climate.

Baltimore and the Rise of a Movement

A common strategy among the defendants in climate lawsuits to delay justice is to frame climate change as a national issue that falls under federal jurisdiction rather than a state issue. Similarly, the accused companies often claim that attempting to hold them accountable for actions that occurred years prior will not prevent further climate change. No matter their tactics, the defendants can only deflect for so long.

Some cities and states have begun to file their own climate lawsuits. Baltimore was one of the first cities to sue a major oil company, and many of the subsequent cases cite the Baltimore case. An amicus brief filed by the National Association of Manufacturers (NAM) for the Baltimore case claims that climate change concerns fall under federal jurisdiction, rather than state and local. If organizations of this nature feel entitled to sway the opinions of the courts and the public, then it is only appropriate for activists, politicians, and citizens to directly address them as well.

What usually comes into question is whether or not the case actually belongs at any court level other than federal. In the Baltimore and other cases, “the fossil fuel companies have focused their defense on the narrow jurisdictional question of whether such lawsuits can proceed in state courts, where they were originally filed.” Still, there has been a history of consumer protection cases tried in state courts, and the plaintiffs in those cases likely had to face similar arguments as climate lawsuit plaintiffs today. 

In the Baltimore case, “the Baltimore city government argues that the companies must help pay for the costs of climate change, because they misled the public about how their products contribute to global warming.” This emphasis on the effects of extractive activities on the public is especially important.

Many cases refer to public nuisance, which occurs when the public is unable to reasonably perform their daily activities due to the actions of another party. Plaintiffs in these cases claim that public rights have been violated as a result of harmful emissions that have persisted despite oil companies’ documented knowledge of the risks, and sometimes even deliberate misinformation. 

Big Tobacco Similarities

Farther down the East Coast, Charleston, South Carolina faces the imminent threat of sea level rise and will require expensive infrastructure to keep the city and its residents safe. Like other lawsuits, Charleston draws inspiration from the successful late-90s victory against Big Tobacco, in which tobacco industry giants were held accountable for tobacco-related afflictions and forced to provide payouts in the billions. The lawsuits filed by most of the local and state governments “accuse the companies and industry groups of making false and misleading claims about climate change.”

In 2006, four major tobacco companies were found guilty of defrauding consumers by covering up the negative health effects of cigarettes. There are multiple similarities between the Big Tobacco and Big Oil legislative scandals, including the researchers behind the misinformation campaigns, which could actually be good for climate activists. One lesson gleaned from the Big Tobacco case is that misinformation and the deliberate concealment of harmful knowledge can be successfully put on trial. Justice prevailed in the Big Tobacco case, just as it can against Big Oil and others who have misled the public.

More Cities and States Join the Fight

Similar cases have occurred in Connecticut, Rhode Island, Delaware, New York, Massachusetts, Minnesota, Vermont, New Jersey, and Washington, DC. In 2020, Connecticut filed a complaint against Exxon Mobil Corporation. The state’s complaint “cites a 1988 internal draft memo from an Exxon spokesperson advising the company ‘emphasize the uncertainty’ of climate science.” Richard Lazarus of Harvard Law expressed that “they’ve done a really good job of showing that the oil and gas industry…engaged in fraudulent activity. The challenge will be causation, to prove that their fraudulent behavior is what prevented the United States from passing the laws we needed to reduce those greenhouse gas emissions.” Connecticut v. Exxon Mobil Corp. was recently in a federal appeals court, but 2nd Circuit Judge Richard Sullivan expressed uncertainty with Exxon’s request to move from state to federal court. 

In April 2022, it was determined that local governments in California can sue oil companies according to a federal appeals ruling. This is a promising development in legal climate action, as the decision refutes Big Oil’s most common defense that we have observed in other cases, which is that these cases should be moved to federal court. The federal court of appeals pronounced that “local governments in California can sue in state court with lawsuits against major oil companies for contributing to climate change by selling fossil fuel products and allegedly deceiving the public about their harmful effects,” establishing that the cases in question were not in fact only federal in nature. The ruling states that “the local governments are not trying to regulate oil companies but only to recover compensation for actions that violate state laws and harm the public.” This provides insight into how future plaintiffs can improve their chances of victory, starting with focusing on compensation that can then force larger change. 

Conclusion  

These lawsuits represent a greater trend of power imbalances that perpetuate the climate crisis. The individuals, states, and communities that have courageously taken on oil companies (and the federal government) have largely been met with dismissal and evasion. We must continue to do all we can to protect future generations, while still standing up for ourselves by demanding compensation for the intentional past actions of Big Oil. Industry associations like the Chamber of Commerce and the National Association of Manufacturers should be more hesitant to assert their influence over climate change cases, as the momentum behind climate legal action continues to build, and we have taken note of the Oil Industry’s involvement. To stay engaged with us on legal climate action and our fight for accountability from groups like the U.S. Chamber of Commerce and other lobbying groups that negatively impact climate justice, follow us at @lobbyforclimate and changethechamber.org.

Change The Chamber is a bipartisan coalition of over 100 student groups, including undergraduates, graduate students and recent graduates. Contact Change The Chamber at changeuschamber@gmail.com.