Arguments Used to Sue Corporations for Causing Climate Change
Just 90 fossil fuel and cement producers are responsible for 63% of all historical greenhouse gas emissions. 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.
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
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.
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.
- Cases: Lliuya v. RWE
Fossil Fuel Industry Knowledge of Climate Change
Internal documents show that the fossil fuel companies have known for decades that burning fossil fuels would impact the climate. 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.
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.
- Cases: Kivalina v. ExxonMobil, Oakland v. BP, Minnesota v. American Petroleum Institute, County of San Mateo v. Chevron, King County v. BP, Rhode Island v. Chevron, Boulder County v. Suncor Energy, Hoboken v. ExxonMobil, Delaware v. BP, Annapolis v. BP
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.
- Cases: In Re Greenpeace Southeast Asia and Others, Gbemre v. Shell, Rhode Island v. Chevron (Public Trust Doctrine), and Notre Affaire a Tous v. Total.
Common Law Principles
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. 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. Below are some of the arguments that have been used.
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.
- Cases: Lliuya v. RWE, Kivalina v. ExxonMobil, Comer v. Murphy Oil, Baltimore v. BP, County of San Mateo v. Chevron, Boulder County v. Suncor Energy, Hoboken v. ExxonMobil, Annapolis v. BP, Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp.
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.
- Cases: Kivalina v. ExxonMobil, Oakland v. BP, County of San Mateo v. Chevron, King County v. BP, Rhode Island v. Chevron, Boulder County v. Suncor Energy, Hoboken v. ExxonMobil, Delaware v. BP, Annapolis v. BP, Smith v. Fronterra Co-Op
Strict Product Liability
In some countries, "strict product liability" allows for businesses to be held liable for introducing dangerous products. 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.
- Cases: County of San Mateo v. Chevron, Minnesota v. American Petroleum Institute, Rhode Island v. Chevron, Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp.
Failure to Warn
Failure to warn occurs when the defendant corporation did nothing to warn the claimant of the risks posed by their products.
- Cases: County of San Mateo v. Chevron, Delaware v. BP, Annapolis v. BP, Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp.
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.
- Cases: Milieudefensie et al. v. Royal Dutch Shell (Nigerian oil pollution case), Comer v. Murphy Oil, Baltimore v. BP, Minnesota v. American Petroleum Institute, County of San Mateo v. Chevron, Rhode Island v. Chevron, Hoboken v. ExxonMobil, Delaware v. BP, Annapolis v. BP, Smith v. Fronterra Co-Op
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.
- Cases: Comer v. Murphy Oil, County of San Mateo v. Chevron, King County v. BP, Rhode Island v. Chevron, Boulder County v. Suncor Energy, Hoboken v. ExxonMobil, Delaware v. BP, Annapolis v. BP
- Liability Roadmap provides a guide to holding polluting corporations liable for their role in causing the climate crisis.
- A4J Template (People v. Carbon Majors)
- Climate Accountability Institute. Information on corporations' emissions and role in climate change
- Union of Concerned Scientists Report on fossil fuel companies contributions to climate change and sea level rise
- Fossil Fuel Industry Documents show that fossil fuel companies knew about the climate impacts of their products decades ago.
- Smoke and Fumes details the fossil fuel industries disinformation and lobbying campaigns
- Harbour Litigation Funding are looking to fund compensation claims by experienced lawyers.
- Pay Up Climate Polluters outlines efforts to hold fossil fuel companies liable in the United States. It also includes resources on what fossil fuel companies knew about climate change and when they knew it.
- Heede, R. 2014. Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010. Climatic Change 122, 229–241
- Global Climate Litigation Report: 2020 Status Review. Sabin Center and United Nations Environment Programme
- Climate Accountability Institute
- Weaver, R. and Kysar, D. 2017. Courting Disaster: Climate Change and the Adjudication of Catastrophe
- Kysar, D. 2011. What Climate Change Can Do About Tort Law. Yale Law School, Public Law Working Paper No. 215. Environmental Law, Vol. 41, No.1
- Climate litigation is coming for the private sector. Capital Monitor, 13 Apr 2021.
- A4J Climate Litigation Guide