Yesterday marked one year since the precedent-setting court ruling in the Netherlands, which ordered Shell to cut its activities’ carbon emissions by 45 percent compared to 2019 levels to align with the Paris climate agreement. The ruling was a landmark for climate litigation, demonstrating the potential power of the courts to help ensure a just climate future. What’s next?
Originally published by Union of Concerned Scientists, The Equation.
By L. Delta Merner
In the year since, there have been even more important advances in climate litigation seeking to hold companies and governments accountable for climate harms. With hundreds of climate-relevant cases and legal advancing actions through the courts around the globe, I wanted to highlight a few important victories, advances, and exciting new cases that have all happened in the short time since the Shell ruling.
Philippines Finds Grounds to Hold Companies Accountable
Earlier this month, the Commission on Human Rights of the Philippines (CHR) published the findings of a seven-year investigation documenting the connection between the deliberate actions of the world’s largest carbon emitters and climate-related human rights abuses in the Philippines. The report concluded that major oil, gas, coal and cement producers have the responsibility to protect human rights and provide remediation.
Drawing on research by the Union of Concerned Scientists and others, the commission report found that fossil fuel companies fully understood their products’ impact on climate as early as 1965, when their own scientists discovered them. Instead of warning the world and transitioning away from fossil fuels, the industry spent the last 50-plus years spreading disinformation and obstructing government action. The industry’s actions, the CHR report said, were driven “not by ignorance, but greed.”
The industry’s obfuscation of climate science and its efforts to block a transition away from carbon may subject fossil fuel companies to legal liability, according to the commission, which argued that the companies violated applicable standards of honesty and good faith under Philippine law.
The commission’s trailblazing work is only the beginning. Its findings have the potential to influence legal thinking in other jurisdictions, and the commission urged human rights institutions in other countries to conduct similar investigations.
Movement in US Courts
Lawsuits in the United States to hold major oil and gas companies accountable for their role in global warming-related damages have multiplied. Despite the defendants’ tedious legal disputes that have snarled many cases over the last few years, there have been a number of important victories this past year.
Since the Shell ruling, major oil and gas companies have lost court rulings in Baltimore, California, Colorado and Massachusetts. In addition, ExxonMobil and Chevron recently failed yet again to relocate their case in Rhode Island, which does not involve federal law, to federal court, which the companies consider a friendlier venue. That same day, the Massachusetts Supreme Court unanimously rejected ExxonMobil’s attempt to dismiss the state’s consumer fraud case against the oil company.
In March, I wrote about a US climate milestone in Hawaii. A state judge ruled that the case in Honolulu against several major oil companies for deceptive practices could move forward in state court. With this ruling, the case can enter the “discovery” phase, an important next step in the legal process. This is the first time climate litigation in the United States has progressed this far. The discovery phase will enable plaintiff lawyers to view internal industry documents that could strengthen their case.
Novel Approaches to Climate Litigation
As the impacts of climate change expand, so do the types of climate litigation claims. Below are three novel legal approaches to watch over the upcoming year.
In March, a first-of-its-kind case was announced against Shell’s board of directors. The suit seeks to hold them personally liable for failing to adopt and implement a climate strategy that aligns with the Paris agreement. Failure to lead an effective transition, the suit argues, is a breach of board duties under the UK Companies Act. This suit points back to the earlier legal win against Shell in the Netherlands. That ruling ordered Shell to address emissions along the full value chain, including pollution from burning Shell products. Now, a year later, Shell’s board has tried to narrow its responsibility to address only the emissions from Shell’s production and manufacturing operations.
Around the same time, a lawsuit was filed in France against TotalEnergies, the country’s largest energy company, for misleading the public with faulty net-zero claims. TotalEnergies launched a campaign that stated it could reach net-zero emissions when its plans include massive fossil fuel expansion. The suit argues that TotalEnerges’s ad campaign is a form of disinformation that ultimately serves to delay urgent climate action and violates the European Unfair Consumer Practices Directive. The lawsuit asks the courts to ban such misleading advertisements.
In April, California’s attorney general launched an investigation into the role of major oil companies in the global plastics pollution crisis. Looking again at the deceptive practices of the oil industry, this inquiry will try to determine whether the industry broke any laws by allegedly misleading the public on whether plastic products can be recycled. This is a new approach exploring accountability mechanisms for the fossil fuel industry’s role in the climate crisis. Plastics are closely tied to climate change: About 4 to 8 percent of annual global oil consumption is associated with plastics.
The Importance of Climate Litigation
Climate litigation is shaping climate action today, and we are witnessing powerful successes. According to the latest UN Intergovernmental Panel on Climate Change (IPCC) report, climate-related litigation “has influenced the outcome and ambition of climate governance.” The report goes on to say that “[o]utside the formal climate policy processes, climate litigation is an important arena for various actors to and interact over how climate change should be governed.”
Despite clear scientific evidence showing the ongoing and potential future impacts of climate change, over the last year overall carbon emissions have increased worldwide. According to the International Energy Agency, the increase in global carbon dioxide emissions of more than 2 billion tons in 2021 was the largest in recorded history, more than offsetting the previous year’s pandemic-induced decline. Governments and industries are going in the wrong direction, but strategic and thoughtful litigation, as demonstrated by the Shell ruling, can help ensure accountability and meaningful action to reverse course.
Dr. Merner provides timely, scientific evidence to support legal cases that hold fossil fuel companies accountable for climate-related damages.
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