United States

The United States has the largest share of historical greenhouse gas emissions of any country, contributing about 25% of historical emissions since the industrial revolution. Today, the United States is the world's second largest emitter behind China, though on a per capita basis its emissions remain higher than China, Europe, and most OECD countries.

The United States has also seen the largest share of climate litigation cases brought to date. According to the United Nations Environment Programme and the Sabin Center for Climate Change, as of July 2020, 1,200 of the 1,550 climate change cases had been filed in the United States.

Despite the number of cases, the United States does not have as favorable a legal framework for climate change litigation as many other countries. It's constitution contains no Right to a Healthy Environment or strong Public Trust Doctrine language. A wave of litigation brought against fossil fuel corporations primarily on nuisance grounds beginning in the early 2000's was largely unsuccessful. High profile cases such as Juliana v. United States and Kivalina v. ExxonMobil have struggled with the issue of standing, a common obstacle to climate litigation.

Nevertheless, climate litigation in the United States has had a significant impact, both on the country's greenhouse gas emissions and on inspiring other litigation around the globe. Juliana v. United States inspired a global trend of youth suing governments for failing to address climate change. Massachusetts v. EPA established that the United States Environmental Protection Agency has the authority to regulate greenhouse gas emissions as a pollutant, which allowed for greenhouse gas regulations to be put in place under the Obama Administration. Lawsuits such as have also been successful at delaying and blocking fossil fuel projects in the United States.

Legal Framework for Climate Litigation in the United States

As of July 2020, approximately 50 percent of the 1,200 climate litigation cases in the United States have been brought under just three laws, the Clean Air Act, the National Environmental Policy Act, and the Endangered Species Act.

Trends in U.S. Climate Litigation

US States and Municipalities v. Carbon Majors

In the last few years at least 25 American states and municipalities have brought suits against fossil fuel companies seeking damages for their increased infrastructure costs of adapting to rising seas, more powerful storms, and other impacts of climate change. Earlier precedent set by American Electric Power Co. v. Connecticut had found that common law claims cannot be pursued under federal law, so these cases were mostly filed in state courts under state law. In turn, the fossil fuel companies as defendants in the cases have pushed to have the cases moved to federal courts which they see as more favorable. None of these cases has yet to reach a decision on the merits. In January 2021, the United States Supreme Court heard oral arguments on whether a case brought by the City of Baltimore should proceed in state or federal court. The outcome of the case is likely to determine how at least 24 other state and municipal suits against the carbon majors proceed.

Fraud Cases Against Exxon

Investigations into a trove of internal Exxon documents in 2015 showed that the company knew that the burning of fossil fuels was warming the planet far earlier than they publicly acknowledged. Worse, this insider knowledge occurred well before fossil fuel companies engaged in a coordinated public relations and lobbying campaign to sow doubt about the existence of global warming.

The attorneys general of New York, Massachusetts, and the U.S. Virgin Islands launched investigations against Exxon in 2015 and 2016. Although the U.S. Virgin Islands ultimately ended their investigation, New York and Massachusetts moved forward with lawsuits against Exxon claiming that the company had deceived investors by misleading them about climate risk caused by Exxon's products. In late 2019, the New York case went to trial. Ultimately the judge cleared Exxon of the investor fraud allegations, but wrote, "nothing in this opinion is intended to absolve Exxon from responsibility for contributing to climate change.” The Massachusetts case has yet to proceed to trial as of March 2021.

Shareholders have also brought cases against Exxon accusing the company of fraud. Two such cases are pending in U.S. Federal Court in Texas.

Public Trust Cases

The wave of Youth v. Gov cases began in the United States in 2015 with Juliana v. United States. Since then, similar cases alleging that governments have violated the public trust doctrine and human rights of young people by failing to act on climate change have appeared in several U.S. states and numerous countries. The cases have succeeded in generating public attention but thus far have been less successful in the courtroom. Juliana was dismissed by a U.S. Appellate Court in January 2020. Several of the state level cases have also been dismissed.

Cases

Important Environmental Law Precedents

• Massachusetts v. EPA (EPA Regulatory Authority over GHG)
• Illinois Central Railroad v. Illinois (Public Trust Doctrine)
• National Audubon Society v. Superior Court (Mono Lake decision) (Public Trust Doctrine)
• Border Power Plant Working Group v. Department of Energy (Greenhouse gas emissions must be considered in Environmental Assessments)
• American Electric Power Co. v. Connecticut (Clean Air Act displaced federal common law on the issue of greenhouse gas emissions)
• National Resource Defense Council v. Wheeler (Global climate change can result in an injury to a specific plaintiff)

State & Municipal Cases Against Fossil Fuel - Cost of Adaptation

• City of Oakland v. BP p.l.c.
• Baltimore v. BP
• Minnesota v. American Petroleum Institute
• County of San Mateo v. Chevron Corp.
• King County v. BP p.l.c.
• Rhode Island v. Chevron Corp.
• Boulder County v. Suncor Energy Inc.
• City of Hoboken v. ExxonMobil Corp.
• Delaware v. BP
• Annapolis v. BP

For more on these cases, see these resources from Sher Edling LLP and the Center for Climate Integrity.

Fraud Cases Against ExxonMobil

• Ramirez v. ExxonMobil
• In re Exxon Mobil Corp. Derivative Litigation
• New York v. ExxonMobil
• Commonwealth v. ExxonMobil
• District of Columbia v. ExxonMobil

Private Suits Seeking Damages from Fossil Fuel Companies

• Comer v. Murphy Oil
• Kivalina vs. Exxon
• Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp.

Cases to Block Fossil Fuel Projects

• WildEarth Guardians v. United States Bureau of Land Management
• Montana Environmental Information Center v. U.S. Office of Surface Mining

Public Trust Cases Against Government

• Foster v. Washington Department of Ecology
• Juliana v. United States
• Kain v. Department of Environmental Protection
• Aji P. v. State of Washington

Other Human Rights Cases

• Rights of Indigenous People in Addressing Climate-Forced Displacement
• Wiwa v. Shell
• Doe v. Unocal Corp.

Divestment, Disclosure, and Fiduciary Duty Cases

• Harvard Climate Justice Coalition v. Harvard College
• Lynn v. Peabody Energy Corp.

False Advertising Against Fossil Fuel Companies

• Beyond Pesticides v. ExxonMobil
• Complaint against Chevron filed with FTC

Defense of Climate Protesters

• Valve turners
• Commonwealth of Massachusetts v. Ward

Resources

• Sabin Center Database
• See Sher Edling LLP for more on U.S. State and local governments v. Carbon majors
• This overview of climate liability litigation in the United States comes from the Center for Climate Integrity

Organizations

• AIDA uses the law to protect the right to a healthy environment. They work throughout Latin America but also have an office in San Francisco.
• The Center for Biological Diversity is a non-profit organization comprised of attorneys, scientists and others with a mission of conserving biological diversity and combating climate change. Their Climate Law Institute offers cutting-edge legal strategies, bringing precedent-setting litigation using existing environmental laws. See their site for a collection of recent legal milestones, current climate campaigns, publications and other resources.
• The Center for Climate Integrity supports legal action and policy change based on the principle that climate polluters need to pay their fair share of the massive costs to prepare for climate impacts.
• The Civil Liberties Defense Center defends front line activists, pursues civil rights litigation, and educates people about their rights and how to use them. They have defended climate activists by invoking the necessity defense.
• The Climate Litigation Accelerator (CLX) is an initiative of the Center for Human Rights and Global Justice at NYU Law School. The goal of the Climate Litigation Accelerator is to support the speed and scale of legal action necessary to address the climate emergency in the timeframe left to avoid triggering extreme scenarios of global warming. CLX focuses on research, litigation and advocacy, network building, and hosting workshops.
• Conservation Law Foundation is a New England-based environmental law organization
• Earthjustice is a nonprofit public interest environmental law organization with offices around the United States
• Earthworks is a nonprofit organization dedicated to protecting communities and the environment from the adverse impacts of mineral and energy development while promoting sustainable solutions.
• Friends of the Earth is the American branch of Friends of the Earth International, one of the largest international environmental networks.
• Greenpeace USA is the American branch of one of the largest international environmental networks.
• Law Students for Climate Accountability looks at the role top law firms have in exacerbating the climate crisis. In 2020, they published the first Law Firm Climate Change Scorecard, which ranked the top law firms in the United States by whether they do work for clients that exacerbate the climate crisis vs. for clients that work to solve the climate crisis. They found the majority of top law firms in the United States do more work for clients that are exacerbating the climate crisis such as the fossil fuel industry.
• Namati seeks to advance social and environmental justice through legal empowerment. In the United States, they focus on environmental injustices caused by the profound disparities in the distribution of environmental harm in the United States.
• Natural Resources Defense Council was America's first litigation-focused environmental non-profit. They have been one of the most common parties to lawsuits to defend the environment and people's environmental rights.
• Our Children's Trust is a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate. They have been behind many of the "Youth v. Gov" cases, including Juliana v. United States.
• Richman Law & Policy is a social justice law firm specializing in consumer class actions, consumer watchdog actions, and civil rights litigation. They specialize in corporate greenwashing litigation.
• Sher Edling is a public interest law firm that has represented numerous US states and municipalities in cases against the Carbon Majors for climate liability.
• Sierra Club is a national grassroots environmental organization, one of the oldest and largest in the United States. They have been parties to numerous environmental and climate lawsuits. Their site contains a robust Environmental Law Program that uses strategic legal campaigns to fight climate change, protect clean air, water and wilderness, and to promote justice for communities threatened by pollution.
• The Union of Concerned Scientists advocates for government policy that is based on science and evidence to solve the biggest challenges facing humankind. Combating climate change is one of their top issues.
• Western Environmental Law Center uses the power of the law to safeguard the public lands, wildlife, and communities of the American West in the face of a changing climate.
• WildEarth Guardians protects and restores the wildlife, wild places, wild rivers, and health of the American West.