Climate Change and Litigation:
Consumer Protection Laws, Human Rights, Children's Right, Loss and Damage

by Daniel Brouse
2016 and 2023

In 2016, the question of what will drive the necessary change was raised. An analogy was drawn between the oil industry and the tobacco industry, suggesting that consumers may allege being misled about the risks associated with burning fossil fuels, leading to potential lawsuits against oil companies. Such legal actions could result in restricted access to oil products or increased insurance costs, mirroring the consequences faced by cigarette smokers. Ultimately, there could be considerations for the prohibition of oil altogether.

In 2022, WGUR Massachusetts reported, "State attorneys general from around the nation, including here in Massachusetts, are suing fossil fuel companies over climate change. Late last month, the state s highest court rejected ExxonMobil's bid to dismiss a lawsuit by Attorney General Maura Healey. And yes, you've seen this movie before. The states took Big Tobacco to court, and they won. The 1998 Master Settlement Agreement imposed tight restrictions on how tobacco companies can promote cigarettes, and requires tobacco makers to pay billions of dollars in damages to the states annually, for as long as they do business in the U.S."

Commonwealth v. Exxon Mobil Corp.
Massachusetts High Court Affirmed Denial of Motion to Dismiss Attorney General's Climate Change-Related Enforcement Action Against Exxon. The Massachusetts Supreme Judicial Court affirmed a trial court's denial of Exxon Mobil Corporation's (Exxon's) special motion to dismiss the Massachusetts Attorney General's enforcement action alleging that Exxon's communications with investors and consumers related to climate change constituted unfair and deceptive practices. Exxon filed the special motion under Massachusetts' anti-SLAPP (Strategic Litigation Against Public Participation) law, which protects parties exercising their right of petition. The Supreme Judicial Court held that the anti-SLAPP law did not apply to government enforcement actions brought by the Attorney General. The court found that this interpretation was grounded in the statutory language, the rules of construction applicable to enforcement of statutes against the Commonwealth, and the legislative history and purpose of the anti-SLAPP law.

In 2023, the BBC reported, "The findings add to ongoing pressure on the company over what it knew about climate change. Campaigners allege it spread misinformation in order to protect its business interests in fossil fuels and are suing the company in a number of US courts. ExxonMobil's private research predicted how burning fossil fuels would warm the planet but the company publicly denied the link."

The report published in Science will be used as evidence against ExxonMobil:
Assessing ExxonMobil s global warming projections

However, ExxonMobil continues to deny the facts. "This issue has come up several times in recent years and, in each case, our answer is the same: those who talk about how "Exxon Knew" are wrong in their conclusions," the company told BBC News.

"It really underscores the stark hypocrisy of ExxonMobil leadership, who knew that their own scientists were doing this very high quality modelling work and had access to that privileged information while telling the rest of us that climate models were bunk," Naomi Oreskes, professor of the history of science at Harvard University, told BBC News.

"Our analysis allows us for the first time to actually put a number on what Exxon knew, which is that the burning of their fossil fuel products was going to heat the planet by about 0.2C of warming every decade," says co-author Geoffrey Supran, associate professor of environmental science and policy at the University of Miami.

"Their excellent climate modelling was at least comparable in performance to one of the most influential and well-regarded climate scientists of modern history," Prof Supran said, comparing ExxonMobil's work to Nasa's James Hansen who sounded the alarm on climate in 1988.

Prof Oreskes said the findings show that ExxonMobil "knowingly misled" the public and governments. "They had all this information at their disposal but they said very, very different things in public," she explained.

The research, published in the academic journal Science, also suggests that ExxonMobil had reasonable estimates for how emissions would need to be reduced in order to avoid the worst effects of climate change in a world warmed by 2C or more.

Their scientists also correctly rejected the theory that an ice age was coming at a time when other researchers were still debating the prospect.

The findings add to ongoing pressure on the company over what it knew about climate change. Campaigners allege it spread misinformation in order to protect its business interests in fossil fuels and are suing the company in a number of US courts.

In June of 2023, Multnomah County, Oregon filed a lawsuit against oil companies to recover costs associated with responding to extreme weather events linked to climate change. The suit alleges the combined carbon pollution emitted by the oil companies was a substantial factor in causing and exacerbating the 2021 heat dome, killing 69 people in a county that typically has mild summers. The Oregonian reported, "The companies have known for decades about the harmful impact of fossil fuels on the climate but chose to deceive the public about the effects and continue to portray them as harmless to the environment."

"At the core, this lawsuit is about fairness and accountability for these giant oil companies who have record profits, who have known about the damage that their products do to our environment and who have been using pseudoscience, disinformation and outright lies for decades. They have prevented us from making the changes needed to protect our climate and protect our community," Multnomah County chair Jessica Vega Pederson said.

California v. Exxon, Shell, Chevron, ConocoPhillips, and BP
In September of 2023, the State of California filed the lawsuit for:

What we're asking the court to do:

Litigating for Children's Right to a Stable and Healthy Climate

Children have filed lawsuits worldwide against their governments over their basic human rights. Our Children's Trust reported:
In November 2013, hundreds of Dutch citizens, along with the Dutch Urgenda Foundation, sued their government to hold the state liable for failing to take measures to prevent dangerous climate change. The plaintiffs argued that under Dutch tort law, the State could be held liable for negligence due to its failure to adequately reduce greenhouse (GHG) emissions in line with its previous international commitments to reduce emissions by 25-40% by 2020. They also argued that the government’s failure to achieve its GHG emission reduction commitments violated their fundamental rights to life, privacy and health under the European Code of Human Rights. The plaintiffs sought a declaration that the Netherlands was acting unlawfully towards the plaintiffs. The plaintiffs also sought injunctions ordering the Netherlands to limit its GHG emissions to a level of 40%, or at least 25% below 1990 levels before 2020 and to present to Parliament within 6 months a program of measures with corresponding budgets that would ensure such GHG emissions reductions. In June 2015, the Hague District Court ruled in favor of the plaintiffs, imposing a 25% reduction of GHG emissions by 2020. The District Court's decision was upheld by both the Court of Appeals in October 2018 and the Netherlands Supreme Court in December 2019.

In August 2023, the Journal Nature reported:

Advocates for action on climate change won a major court victory in the United States this week. A district court judge ruled in Held v. Montana that Montana's Environmental Policy Act, which prohibits the state from considering the climate impact of proposed energy projects, violates the "right to a clean and healthful environment" promised by the state's constitution. Montana's attorney-general has vowed to appeal. The case was brought in 2020 on behalf of a group of 16 young people, now between 5 and 22 years old, and was litigated by Julia Olson at the non-profit law firm Our Children's Trust. Olson has been involved with dozens of climate cases since around 2010.

In September of 2023, six young people from Portugal filed a lawsuit against 32 governments, including all EU member states, the UK, Norway, Russia, Switzerland and Turkey. The youth claim their fundamental human rights to life, privacy, family life and to be free from discrimination are being violated due to governments' responsibility for climate change.

"What I felt was fear," says Claudia Duarte Agostinho remembering the extreme heatwave and fires that burned Portugal in 2017 killing over 100 people. "The wildfires made me really anxious about what sort of future I would have. I want a green world without pollution. I want to be healthy. I'm in this case because I'm really worried about my future. I'm afraid of what the place where we live will look like."

The BBC reported, "They accuse the countries of insufficient action over climate change and failing to reduce their greenhouse gas emissions enough to hit the Paris Agreement target of limiting global warming to 1.5C. The case is the first of its kind to be filed at the European Court of Human Rights (ECHR) in Strasbourg. If it is successful, it could have legally-binding consequences for the governments involved."

Climate Change Cliff's Edge

UPDATE: Lawsuit Over Violent Rain and Lower Moist Heat Stress Tolerance
On November 1, 2023, the Guardian reported:
When Kevin Jordan bought his seaside home in Hemsby, Norfolk, he was told it would be safe for a century. In the decade since, 17 of his neighbours' homes have had to be demolished, or have been swept away into the waters of the North Sea. His is now just 5 metres from the fast-crumbling cliff, isolated and unreachable by car after part of the road collapsed into the North Sea.

"The collapse of the road made so many more things a struggle," Jordan said. "From emergency services to bin collections, grocery shopping and even the post, it's been one thing after another. It feels like we're being forgotten up here."

In a care home 200 miles away, in Wetherby, West Yorkshire, lives Doug Paulley, a co-claimant in the case. "During last year's heatwaves in the UK, I practically had to hibernate to get through it, and couldn't venture outside," said Paulley. According to the Health Security Agency 2,803 excess deaths occurred during the summer of 2022. Those with medical conditions, older people and very young children were especially at risk.

And now, in a case believed to be the first of its kind, Jordan is taking the government to court, alleging its failure to set out lawful "adaptation objectives" in its latest plan is a breach of his human rights.

European Court Rules Human Rights Violated by Climate Inaction

On April 9, 2024, a landmark climate case reached its conclusion as a group of older Swiss women secured a historic victory in the European Court of Human Rights. This victory marks the first-ever successful climate litigation in the court's history and signals a significant turning point in the global fight against climate change. The court's ruling castigated Switzerland's inadequate efforts to meet its emission reduction targets, underscoring the urgency of addressing climate crisis. Celebrations erupted among activists gathered at the court in Strasbourg, including Swedish campaigner Greta Thunberg, who joined in the jubilation.

"We still can't quite believe it. We keep asking our lawyers, 'is that right?'" remarked Rosemarie Wydler-Walti, one of the leaders of the Swiss women, in an interview with Reuters news agency. "And they assure us that it's the most favorable outcome we could have hoped for. It's the biggest victory possible." Ms. Thunberg emphasized the significance of the ruling, declaring, "This is only the beginning of climate litigation. It signifies that we must intensify our efforts, as this marks just the initial step. In a climate emergency, everything is at stake."

The court's decision holds weight beyond Switzerland, potentially influencing legislation in 46 European countries, including the United Kingdom. It found Switzerland in violation of its obligations under the Convention concerning climate change, emphasizing its failure to uphold the right to respect for private and family life.

The Swiss women, known as KlimaSeniorinnen or Senior Women for Climate Protection, presented compelling arguments, citing their inability to leave their homes and the health risks they face during heatwaves in Switzerland. The KlimaSeniorinnen group, comprising over 2,000 women, initiated the case nearly a decade ago, advocating for enhanced protection of women's health in the context of climate change. Their perseverance and dedication have culminated in this groundbreaking legal victory, offering hope and inspiration to climate activists worldwide.

Recent data underscores the severity of the climate crisis, with last month marking the warmest March on record globally, continuing a trend of temperature records being shattered for ten consecutive months.

Ruled Against: UK

On May 3, 2024, a High Court judge delivered a significant ruling, declaring the U.K. government's actions unlawful in approving a climate plan aimed at meeting crucial emission reduction targets without sufficient evidence of its feasibility. This marked the second occasion in two years where the government's primary climate strategy faced legal challenge and was deemed inadequate in aligning with legally-binding commitments to curb greenhouse gas emissions.

Justice Clive Sheldon's decision, following a case brought forth by three environmental organizations, underscored the government's failure to substantiate its approval of the Carbon Budget Delivery Plan from the previous year. The judge concluded that the government lacked justification and the plan was "simply not justified by the evidence."

Maritime Law

On May 21, 2024, the top maritime court declared that states have a legal duty to cut greenhouse emissions, marking a significant moment for climate justice. The international tribunal for the law of the sea (ITLOS) stated that greenhouse gases are pollutants damaging the marine environment, and that states have a legal responsibility to control them. Wealthy nations, the court decided, must reduce their emissions more rapidly than developing countries. It is the first time an international court has issued such a document.

In its unanimous opinion, the tribunal stated that the oceans are warming and becoming more acidic due to carbon dioxide emissions from human activities. This results in harm to marine life and resources, hazards to human health, and hindrances to marine activities such as fishing. The tribunal concluded that anthropogenic greenhouse gases are a form of pollution, and that states that have signed the convention are legally required to prevent, reduce, and control it "by all means necessary." Regrettably,  the USA is not a signatory to UNCLOS (UN law of sea).

Total Crime

May 21, 2024 -- A criminal case has been filed against the CEO and directors of the French oil company TotalEnergies, alleging that its fossil fuel exploitation has contributed to the deaths of victims of climate-fueled extreme weather disasters. The case was filed in Paris by eight individuals harmed by extreme weather, along with three NGOs. The plaintiffs believe this to be the first criminal case filed against the individuals running a major oil company.

One plaintiff in the TotalEnergies complaint, known as William C, lost his mother in the floods brought by Storm Alex in southeastern France in 2020. "I am defending the honor of my mother, who died because of a climate disaster," he said. "The choices that Total and its shareholders make at the annual general meeting will have a decisive impact on our lives in the future."

Vermont First State to Make Fossil Fuel Companies Pay for Climate Damage

May 31, 2024 -- Vermont has enacted a groundbreaking law requiring fossil fuel companies to pay for climate change damages, following severe summer flooding and other extreme weather events. The new law mandates the Vermont state treasurer, alongside the Agency of Natural Resources, to report by January 15, 2026, on the costs incurred by Vermonters and the state due to greenhouse gas emissions from January 1, 1995, to December 31, 2024. This assessment will cover loss and damage to public health, natural resources, agriculture, economic development, housing, and more, using federal data to attribute emissions to specific fossil fuel companies.

The Human Induced Climate Change Experiment

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