A Lucrative Micro-Niche: Climate Change Practice (Part 1)

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In 2016, the nations of the world created the Paris Agreement, an international call to action in the battle against a rapidly changing climate.

The agreement outlined limits to greenhouse gas emissions and other major changes to economies and infrastructure — the kinds of things that might be inconvenient but worth doing when the alternative is widespread climate catastrophe. Nearly every country in the world signed the agreement. But today, nearly every country in the world is falling short of its commitments — and the science behind those commitments is getting scarier.

In a related development, some of the largest oil and gas companies now find themselves defending lawsuits over their industry’s role in this same climate threat. This wave of legal challenges now washing over the industry and demanding accountability for climate change started as a ripple after revelations that ExxonMobil had long recognized the threat fossil fuels pose to the world.

Now at least 14 US cities, five counties, one state, and a group of children are suing some of these companies for selling products that contribute to global warming while misleading the public (reminiscent of tobacco litigation) about the harm of their products. Most of these cases are still undergoing pretrial legal motions; and while lawsuits brought by the cities of Oakland and San Francisco have been dismissed, they are currently being appealed.

The “group of children” consisted of 21 young people, including two University of Oregon students all between the ages of 8 and 19, seeking to compel the government to take more aggressive steps to reduce carbon dioxide emissions. They are arguing, in this high-profile climate rights case, that their constitutional rights have been violated because federal agencies have failed to protect “essential public trust resources.” They also allege that the government created a national energy system that is doing long-term damage to the environment and imperiling their futures. According to Paul Sabin, a professor at Yale, “this is only the beginning.”

Bring a Case to Trial

With a flurry of lawsuits starting to be filed across so many jurisdictions, the likelihood of climate cases getting to a trial grows.

“Big oil knew for decades that greenhouse gas pollution from their operations and their products were having a significant and detrimental impact on the earth’s climate,” said Rhode Island Attorney General Peter Kilmartin. “Instead of working to reduce that harm, these companies chose to conceal the dangers, undermine public support for greenhouse gas regulation, and engage in massive campaigns to promote the ever-increasing use of their products and ever-increasing revenues in their pockets.” Kilmartin has announced that his state is suing companies like Exxon Mobil, Chevron, BP, and Royal Dutch Shell.

The argument in most of these cases is similar to what Kilmartin cited: These oil and gas companies have known for decades that their products release greenhouse gases that warm the planet (but hid the information), which in turn harms the public with rising seas encroaching on shoreline properties and drier weather increasing wildfire risks for homes. At the same time, the plaintiffs say, coal miners and oil drillers obfuscated their products’ impact on the environment despite their own internal research showing that carbon dioxide from burning fossil fuels is warming the planet. (Ironically, oil companies have even requested government funding to build sea walls to protect their own coastal refineries from these same climate change impacts!)

According to an interview with David Bookbinder, chief counsel at the Niskanen Center, the bottom-line is simple: ‘You made this product, and you knew while making this product that it was going to cause these horrific problems. And you did not tell anyone.’

Meanwhile, this is fast becoming a global issue. It is estimated that more than 1,400 climate change litigation cases have been filed to date around the world, covering 25 countries and a variety of issues, claimants, and defendants. The key drivers for this kind of litigation include:

  • compensation for the costs of adaptation to climate change;
  • challenging climate change-related legislation and policies, or their application;
  • preventing future emissions and contributions to climate change;
  • requiring governments or regulators to take action to meet national or international commitments; and
  • raising awareness and exerting pressure on corporate actors, regulators, or investors.

This current wave of litigation is raising new legal questions in the context of climate change for the first time. For local governments suing oil and gas companies, the fight is over who’s on the hook for paying damages stemming from rising average temperatures. In the children’s lawsuits, the key issue is whether a stable climate is a civil right.

In the next installment in this series, we’ll look at what actions some lawyers and law firms are taking to stake a claim in this potentially lucrative micro-niche and play a role in this on-going legal drama.