Mitigation helps. Composting, planting trees, driving electric cars, building wind farms, and even painting roofs with cooling, super-white paint can soften the impact of the man-made greenhouse effect that made this past summer the hottest in the planet’s history.
But litigation is so much more satisfying.
California went big late last week, suing ExxonMobil, Shell, BP—sorry, bp—and other energy giants for reaping obscene profits while misleading the public about the climate risk posed by fossil fuels and forcing the taxpayer to underwrite tens of billions of dollars spent fighting flood, fire, and drought.
As always, Washington lobbyists and $2,000-an-hour law firms will fight back hard, spending tens of millions to distract, stall, challenge, appeal, countersue, and someday even settle. Let them. Among other things, the California suit provides another chance to challenge the industry’s insistence that any misleading information they may have emitted alongside carbon dioxide is free speech, and not false advertising.
That’s when oil barons cite the Supreme Court ruling in the 2010 Citizens United case, which established that corporations such as General Dynamics, Exxon, bp, and Shell are entitled to First Amendment protections because they are people, too. And they are just like us: except even more self-interested, shortsighted, and deceitful.
Energy companies proved it again this year, by doubling down on oil and gas and rolling back efforts to curb emissions. Shell takes the cake: as Bloomberg News reported, the multi-national quietly spiked its commitment to spend up to $100 million a year to zero out emissions by 2050. It also had the nerve to claim that it had already met a goal of reducing production 20 percent by 2030—by selling some of its operations to ConocoPhillips. (California is also suing ConocoPhillips.)
Another chance to challenge the industry’s insistence that any misleading information they may have emitted alongside carbon dioxide is free speech, and not false advertising.
While some Exxon executives talked up green energy at the World Petroleum Congress in Calgary this week, others announced that the company expected to rake in $16 billion from its fuels and chemicals businesses in 2027. This as The Wall Street Journal reported that, behind closed doors, Exxon executives have for years, and even recently, “strategized over how to diminish concerns about warming temperatures, and they sought to muddle scientific findings that might hurt its oil-and-gas business.”
Most governments aren’t doing much better. This month, the United Nations revealed that developed nations have largely failed to meet their commitments to cut emissions—or their promises to compensate the poorest countries breathing in the secondhand smoke of the industrial world. On Wednesday, the U.N. hosted a sideline Climate Ambition Summit, where only countries that are making serious efforts were allowed to speak: the United States and China were benched.
So, despite all the pledges and feel-good greenwashing, the planet is hurtling ever closer to irreversible and catastrophic global warming.
This might be the time to admit that I come very late to this issue, no better really than the French collaborators who joined the Resistance in August 1944. But scorching temperatures, raging wildfires, melting glaciers, and rising sea levels also explain why a Montana district judge in August ruled in favor of the plaintiffs—a group of young people who claimed their constitutional right to a clean and healthy environment had been violated. The state will appeal, but the litigation bug keeps spreading.
Six young Portuguese citizens are making the same argument this week before the European Court of Human Rights, in Strasbourg, suing 32 European countries for failing to meet their rights, citing the CO2-emission-reduction commitments in the legally binding 2015 treaty known as the Paris Agreement. And actually, those young people are following in the footsteps of a group of elderly Swiss women, known as the KlimaSeniorinnen Schweiz, who last March appealed their climate case against the Swiss government and are expecting a verdict in Strasbourg before 2024. (And, who knows, maybe the outcome will lead to a Netflix movie starring Judi Dench and Maggie Smith: “The Best Endangered Marigold Hotel.”)
“The growing number of people taking to court to hold governments and fossil-fuel companies accountable is encouraging” says Michael Burger, the executive director of the Sabin Center for Climate Change Law, at Columbia University. “But the fact that so many people are going to court because they cannot get results from government or the private sector is also a cause for concern.”
The number of climate lawsuits has more than doubled over the last few years, and the Natural Resources Defense Council (N.R.D.C.) has led the charge with dozens of active cases. Plaintiffs in Puerto Rico, still staggering under the $100 billion worth of destruction left by Hurricane Maria in 2017, are the latest to go after fossil-fuel companies under the RICO statute, the Racketeer Influenced and Corrupt Organizations Act, which was created to bust organized crime. RICO was successfully used to bring Big Tobacco to heel, and, who knows, might yet help nail Donald Trump and Rudy Giuliani in Georgia.
“The fact that so many people are going to court because they cannot get results from government or the private sector is also a cause for concern.”
Companies such as Exxon and Shell are playing whack-a-mole with lawsuits. “The fact that the energy industry is being sued globally is much more annoying for fossil-fuel companies than having to fight one local government,” Amy Westervelt, an environmental journalist and creator of the podcast network Critical Frequency, says. “And a win in one place can lead to another: even the richest companies begin to see litigation as a huge financial risk.”
And it’s not just the costs of defending a lawsuit that hurt. As Big Tobacco learned in 2006, the process of discovery in a trial forces the disclosure of all kinds of louche payments, suppressed internal studies, and incriminating memos. Or, as David Lipsky put it in his riveting new book, The Parrot and the Igloo: Climate and the Science of Denial: “the difference between tobacco on health and Exxon on climate I believe is this: their records have not yet been thrown open by court order.”
Nobody really likes litigation as a tool for reform. The waste of paper alone is shameful. But like activists throwing red paint over Monet’s The Artist’s Garden at Giverny, or the protester who glued his feet to the concrete floor at the U.S. Open, climate lawyers command attention.
And, yes, everyone—politicians, consumers, farmers, car-makers, airlines, cruise-ship companies, yacht owners, golfers (watering all those courses), and private-jet users—share the blame for not acting more decisively to curb global warming. Energy companies are not the only culprits. But their time has come: just as in the 1960s, when new scientific studies gave people a scary heads-up about global warming, the multiplying court cases in the United States and across the world now serve as a scary heads-up to governments and companies such as Shell and Exxon—it is only going to get worse.
Alessandra Stanley is a Co-Editor at Air Mail
