Arguments Used to Sue Corporations for Causing Climate Change

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Just 90 fossil fuel and cement producers are responsible for 63% of all historical greenhouse gas emissions.[1] With the majority of greenhouse gas emissions attributable to a small number of companies, lawsuits seeking damages for climate impacts can be brought against those most responsible for the climate crisis.

To date, no court has ordered a defendant to pay damages for climate harms caused by a defendant’s contribution to climate change, but a number of ongoing cases seek just that.[2]

Note: This is part of a series on arguments that can be used in climate litigation. For more articles in this series, see the arguments series.

For another great resource on this topic, check out the Action 4 Justice Climate Litigation Guide

Attribution Science[edit]

Due to advances in Attribution Science, it is possible to estimate the percentage of historical greenhouse gas emissions that major fossil fuel companies are responsible for. The work of Richard Heede on Carbon Majors has been widely cited in climate liability suits against corporations. Heede's report found 63 percent of all global emissions since 1751 are attributable to just 90 companies and that half of all carbon emissions by global fossil fuel and cement companies have been emitted since 1988, when climate change was widely and publicly known.[3]

One strategy that has been used in court is to pursue damages in the amount proportional to the defendants contribution to climate change. For example, in Lliuya v. RWE, the plaintiff asked for damages totaling 0.47% of the cost of adapting to climate change, the precise contribution of greenhouse gases that RWE had emitted into the atmosphere.

Fossil Fuel Industry Knowledge of Climate Change[edit]

Internal documents show that the fossil fuel companies have known for decades that burning fossil fuels would impact the climate.[4] But instead of investing in alternatives to fossil fuels, industry doubled down on fossil fuels and launched a public disinformation and lobbying campaign to sow doubt about climate change.[5]

Many suits brought against the fossil fuel industry have used these facts as a core argument in their case. The fact that the fossil fuel industry knowingly caused climate change and misled lawmakers and the general public can help establish common law claims like negligence. It has also been used to bring consumer protection and fraud cases against the fossil fuel industry.

Human Rights[edit]

Usually, human rights claims can only be brought against the State, but in some countries there are “due diligence laws” that allow individuals to take human rights claims directly against businesses when they do not take reasonable steps to prevent human rights abuse in their operations. Cases have been brought for violations of the Right to Life, Right to a Healthy Environment, and the Public Trust Doctrine.

Common Law Principles[edit]

In common law countries, claims can be brought against the fossil fuel industry under tort law. Holding corporations liable for their contributions to climate change is not easy. So far, no court has ordered a company to pay damages for climate harms caused by it’s contribution to climate change yet, although this has been tried many times (see below). Using tort law to address climate change means a historic shift.[6][7] Despite these challenges (see also Obstacles to Climate Litigation), the number of cases brought against fossil fuel corporations has increased in recent years and this is slowly becoming an important concern for the industry.[8] Below are some of the arguments that have been used.

Private Nuisance[edit]

If your land or property is affected by climate change, a claim of private nuisance could be relevant. Private nuisance is committed when a person or corporation unreasonably and substantially damages or interferes with the use or enjoyment of your property.[9]

Public Nuisance[edit]

Public nuisance occurs when an actor harms the public or interferes with a public right. Often, public nuisance claims are brought when an action or omission threatens a community's health, safety, or overall welfare. Several cases against fossil fuel companies have focused on sea level rise, increased risk of flooding, and increased risk of wildfires as public nuisances.

Strict Product Liability[edit]

In some countries, "strict product liability" allows for businesses to be held liable for introducing dangerous products.[9] This often involves showing that the defendant designed, produced, promoted, or sold a product that posed a foreseeable risk to the public and that the defendant failed to warn consumers about the risk.

Failure to Warn[edit]

Failure to warn occurs when the defendant corporation did nothing to warn the claimant of the risks posed by their products.[9]

Negligence[edit]

In negligence cases it need not be shown that a corporation intended or wanted to cause injury, merely that it acted recklessly or carelessly which resulted in the harm.

The first step in a negligence case is to show that the corporation owes you a duty of care, meaning that the corporation must act with a degree of caution or care when taking actions that could impact you.

In negligence cases, it is helpful to show that the harm was foreseeable. Given the fossil fuel industry's knowledge of global warming decades ago, there is strong evidence to support this argument.

Trespass[edit]

Trespass has been argued in several cases against the fossil fuel industry. The argument is that climate change, as caused by the fossil fuel industy, has caused seawater, floodwater, fire, invasive species, or other uninvited nuisances to enter the plaintiff's property.

Resources[edit]

References[edit]