There are at least 20 pending lawsuits filed by cities and states across the U.S., alleging major players in the fossil fuel industry misled the public on climate change to devastating effect.
While the precise claims vary from case to case — from securities fraud to nuisance, negligence and tort — most center on an argument that companies failed to disclose what they knew about their potential impact on the environment.
It’s a relatively new legal tactic in a longtime argument from industry critics: that oil and gas companies must be held responsible for downplaying the impacts of fossil fuels and stalling government action on climate change — claims examined in FRONTLINE’s three-part documentary series The Power of Big Oil.
Karen Sokol, a professor of climate law at Loyola University New Orleans, called the suits “particularly distinctive worldwide, in that they’re the only ones, so far, that are seeking to hold the industry to account for its organized, systematic climate disinformation campaign.”
While the U.S. remains at the vanguard of this approach, Vancouver’s city council voted July 21 to fund a 2023 class-action lawsuit against big oil, making it the first Canadian city with specific plans to do so.
Before the current wave of litigation, the court system wasn’t seen as a viable path for accountability, a handful of independent legal scholars told FRONTLINE. Even now, supporters anticipate a long road ahead.
“The foundational tension is: Is this appropriate for the courts to do or not?” asked Holly Doremus, a professor of environmental law at University of California, Berkeley.
Beginning with Rhode Island in 2018, attorneys general in states including Massachusetts, Connecticut and Minnesota have filed lawsuits citing oil and gas industry violations of local consumer-protection laws, following on the heels of similar lawsuits filed by some California cities as early as 2017.
Many of the lawsuits name the same defendants, including Exxon Mobil, Chevron, BP and the lobby organization American Petroleum Institute (API).
What Plaintiffs Say
The claims hinge on longstanding local statutes and common-law torts first widely used in consumer-protection lawsuits from the 1960s and more recently in litigation over tobacco and pharmaceuticals. Key to these laws is that companies can be held accountable for failing to warn consumers of known potential hazards, Sokol said.
In the lawsuits, states and cities are making the case that the fossil fuel industry’s failure to warn consumers about its products’ contributions to climate change is already having a negative effect on communities.
What Defendants Say
Some defendants have filed to dismiss the cases, denying oil and gas companies violated state statutes. But most have argued the cases need to be tried in federal court.
“[C]limate policy is federal and regulatory in nature — not one that can be decided by state courts,” Phil Goldberg, special counsel for the anti-climate-litigation group Manufacturers’ Accountability Project, told Pew in April.
When contacted for this story, API referred FRONTLINE to their response to The Power of Big Oil: that critics were “cherry-picking information from decades ago to support a misleading predetermined narrative.”
Why Now: A Case Study
“One thing that might have triggered this wave of litigation is that cities have become aware in the past 15 years that climate change is costing them money,” said Doremus, of Berkeley. “That’s especially true for coastal cities, counties and states, where a lot of these cases are coming from. I think just looking for any way to deal with this problem has sent them to the state courts.”
In September 2020, the city of Hoboken, New Jersey, filed suit in state court against Exxon Mobil and 12 other entities — including BP, Shell, Chevron, Conoco Phillips and API — citing devastation from Hurricane Sandy in 2012.
The lawsuit alleges that, under the city’s consumer-protection statute, the defendants are responsible for climate-change-related damages associated with the sale of fossil fuels. The suit seeks to recover hundreds of millions of dollars the plaintiffs say are associated with those damages, as well as $140 million the city spent in the last decade on climate-resiliency projects, including building waterfront flood barriers and underground cisterns to manage excess water.
“We do not believe the courtroom is the right venue to address climate change … .”
– a Shell spokesperson
“As a coastal community, Hoboken has directly felt the impacts of climate change, including rising sea levels and more frequent storms,” Mayor Ravi Bhalla said in a 2020 announcement about the lawsuit. “Big Oil companies have engaged in a decades-long campaign of misinformation that has contributed to global warming, which has disproportionately impacted our residents.”
In response to questions about the suit, a Shell spokesperson told FRONTLINE: “Addressing a challenge as big as climate change requires a truly collaborative, society-wide approach. We do not believe the courtroom is the right venue to address climate change, but that smart policy from government, supported by action from all business sectors, including ours, and from society, is the appropriate way to reach solutions and drive progress.”
A spokesperson for BP said the company does not comment on pending litigation. Chevron and Conoco Phillips did not respond to requests for comment.
Exxon Mobil: A Sole Defendant
Also in September 2020, Connecticut Attorney General William Tong filed a lawsuit in state court against Exxon Mobil — one of only a few cases to name a single defendant.
“Exxon Mobil sold oil and gas, but it also sold lies about climate science. Exxon Mobil knew that continuing to burn fossil fuels would have a significant impact on the environment, public health and our economy. Yet it chose to deceive the public,” Tong wrote in statement emailed to FRONTLINE.
“Exxon Mobil made billions of dollars during its decades-long campaign of deception that continues today. Connecticut’s citizens should not have to bear the expense of fortifying our infrastructure to adapt to the very real consequences of climate change.”
Exxon Mobil declined to grant FRONTLINE an interview. In a written response, the company said: “For more than 40 years, we have supported development of climate science in partnership with governments and academic institutions. Exxon Mobil has never had any unique or superior knowledge about climate science, let alone any that was unavailable to policymakers or the public.”
Last year, Exxon Mobil announced it would invest $15 billion dollars in initiatives — developing carbon capture and storage, as well as biofuels — intended to lower greenhouse-gas emissions.
So Far, a Lone Trial
Almost none of these cases has reached trial, and the one that did was dismissed. In his 2019 ruling on that dismissal, New York supreme court judge Barry R. Ostrager found the state didn’t provide sufficient evidence to prove Exxon Mobil intentionally mislead investors about known climate-change risks.
“Nothing in this opinion is intended to absolve Exxon Mobil from responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products,” Ostrager wrote. “But Exxon Mobil is in the business of producing energy, and this is a securities fraud case, not a climate change case.”
The Jurisdiction Question
Nearly all of the cases remain embroiled in battles over jurisdiction, with the typical trajectory looking something like this: A lawsuit is filed in state court, claiming common law or consumer-protection laws have been breached. Defense requests the suit be moved to federal court, citing the federal regulation of both greenhouse-gas emissions and the international sale of oil and gas.
Industry critics call the move to federal court a delay tactic. While consumer-protection laws exist at the federal level, they’re generally seen as less favorable to plaintiffs. Plaintiffs then appeal, seeking to return to state court.
Some recent federal court decisions show support for state jurisdiction.
In February, the 10th U.S. Circuit Court of Appeals sent a case originally filed by the city of Boulder and Colorado’s San Miguel County against Exxon Mobil and Suncor Energy back to state court, rejecting various defense arguments, including that the case belonged in federal court because the Clean Air Act superseded state law.
“The CAA is designed to provide a floor upon which state law can build, not a ceiling to stunt complementary state-law actions,” wrote Circuit Judge Carolyn McHugh.
“This case is about whether oil and gas companies misled the public about dangers from fossil fuels … .”
– 9th U.S. Circuit Court of Appeals Judge Ryan D. Nelson
And in April, the 4th U.S. Circuit Court of Appeals ordered a case brought by the city of Baltimore against BP, Exxon Mobil and 24 other oil companies back to state court — a decision it upheld in May, following an appeal by the defense.
“The impacts of climate change undoubtedly have local, national and international ramifications. But those consequences do not necessarily confer jurisdiction upon federal courts carte blanche,” wrote Chief U.S. Circuit Judge Roger Gregory in the decision.
Most recently, the 9th U.S. Circuit Court of Appeals ruled in July that lawsuits filed by the city and county of Honolulu and the county of Maui against a number of oil companies, including Sunoco and Exxon Mobil, should be tried in state court.
“This case is about whether oil and gas companies misled the public about dangers from fossil fuels,” not about federal matters, wrote Circuit Judge Ryan D. Nelson in the decision. “Thus, we decline to extend federal jurisdiction.”
Neither Sokol nor Doremus saw the U.S. Supreme Court’s June 30 decision in West Virginia v. EPA, which curtailed the Environmental Protection Agency’s power to regulate greenhouse gases, as impacting these lawsuits.
But if other cases follow Baltimore and Colorado back to state courts, Sokol said additional states might file lawsuits: “I suspect that there are some [states] who are watching closely.”
Even with recent gains, plaintiffs face a lengthy fight. Similar to the Baltimore case, defendants in the Minnesota case have signaled they’ll appeal. “They’re already planning on petitioning the Supreme Court,” Sokol said.
Succeeding on these types of claims historically has been difficult. In the case of big tobacco, a 1998 settlement forced tobacco companies to pay states billions of dollars in healthcare costs — but only after nearly four decades of litigation.
Despite the odds, Sokol sees those examples as reasons for hope. “I think that the opioid and tobacco cases demonstrate that state courts are perfectly capable of adjudicating deceptive marketing cases,” she said.
Said Richard Wiles, president of the advocacy group Center for Climate Integrity, “It’s the ultimate David and Goliath battle.”