Court to Rule on Climate Liability Suits Against Oil Giants

Turn any article into a podcast. Upgrade now to start listening. Members can share articles with friends & family to bypass the paywall. Welcome to Dispatch Energy! Since the Democrat-led Congress in 2009 tried and failed to pass a cap on carbon emissions, climate activists and policy entrepreneurs have come up with a number of creative ways to impose limits on fossil fuel consumption by other means. These included the misguided but relatively inoffensive civil protests against projects like the Keystone XL pipeline and the anti-Big Oil #ExxonKnew public relations campaign. But more recently, advocates have advanced a wave of coordinated lawsuits against oil and gas companies and the government regulators who have failed to bring the industry to heel. These “climate liability” suits have reached as far as the appellate court system. In 2024, the 9th Circuit heard, and dismissed, the famous children’s climate lawsuit that argued for a constitutional “right to a stable climate.” More recently, the Supreme Court agreed to hear Suncor Energy v. Boulder County, a suit filed against Suncor Energy and Exxon attempting to hold the oil and gas companies liable for damages associated with climate change. A ruling in that case is expected next year, with implications for more than 3,000 similar suits filed by activist groups, attorneys general, and other plaintiffs. Despite the varied legal specifics and venues, the theory on which all these suits rest is always basically the same. Emissions from fossil fuels caused climate change. Fossil fuel companies and policymakers knew it. Therefore, courts should hold the companies legally liable, punish them financially, and enact limits on fossil fuels. So far, these suits have not taken meaningful force. We should hope that remains the case. They are an attempt to subvert the deliberative democratic policymaking process by imposing climate targets through judicial fiat. The pathway to legitimate climate policy goes through the legislative process, daunting as that may be. Activist climate litigants modeled their new-fangled legal strategy on the lawsuits filed against the tobacco industry in the 1980s and 1990s. In a 2012 workshop hosted by the Union of Concerned Scientists (UCS), leading climate advocates observed that “a key breakthrough in the public and legal case for tobacco control came when internal documents came to light showing the tobacco industry had knowingly misled the public.” The tobacco analog led climate advocates toward two strategies to establish legal liability for climate damages by fossil fuel companies. First, they committed to show that the fossil fuel industries “deceived the public” and “robbed humanity of a generation’s worth of time to fight climate change” as the #ExxonKnew website would go on to describe it. Second, as the proceedings from the UCS workshop explain, “participants identified the need for robust methodologies to quantify and attribute present-day damages from climate change impacts.” They have since tried, and in my view failed, to establish either of these premises. Start with the supposed scientific cover-up. What we now understand as mainstream climate science was mostly discovered and theorized in the late 19th and early 20th centuries. The first presidential climate change committee was convened by President Lyndon B. Johnson in 1965. By the late 1970s and early 1980s, the basic science of anthropogenic—or human-driven—warming was widely disseminated through scientific journals, government reports, major newspapers, television coverage, congressional hearings, and international scientific assessments. Oil companies themselves often publicly acknowledged the risks of climate change and funded mainstream climate research alongside universities and federal agencies. The problem of climate change is not simply one caused by some bad American corporate actors launching scurrilous marketing departments in the 1980s and 1990s, which is the impression one gets reading the influential Inside Climate News investigations into Exxon and other oil and gas companies. To the contrary, climate change is the cumulative result of centuries of greenhouse gas emissions from global fossil fuel combustion and massive land use change. Most of those fossil fuel reserves were, and still are, owned and produced by governments, not private industries, and the majority of today’s reserves sit in low- and middle-income countries, not wealthy ones like the United States. Winding down the fossil fuel industry is not nearly as simple as these suits would claim. Climate activists and scientists have also invented a new form of statistical analysis to link natural disasters and extreme weather to anthropogenic climate change, even though the consensus of the Intergovernmental Panel on Climate Change has yet to detect an increase in the frequency or severity of most of these events at the global level. But instead of looking at these overall trends, the newer climate “attribution analysis” compares a real-world natural disaster with a hypothesized, counterfactual disaster that supposedly would have occurred in a world without global warming. For instance, the organization World Weather Attribution claims that last year’s wildfires in Southern California were 35 percent more likely than they would have been in the absence of warming. But this style of analysis is nonsensical because those counterfactuals are nonsensical. It doesn’t make any sense to imagine the damage the Palisades fire would have done to the modern, wealthy, populous city of Los Angeles without the consumption of fossil fuels that allowed Los Angeles to become modern, wealthy, and populous in the first place. Climate change may have made conditions that accompanied the fire hotter and drier, but the fire itself was likely caused by arson, worsened by government ineptitude, and otherwise mediated by a bottomless complexity of factors including overgrown vegetation, unweatherized homes, empty reservoirs, and urban design policy. Meaningfully attributing even plausible effects of global warming to any one company or even any one nation is simply impossible methodologically. Doing so in a way that clearly establishes legal liability for the economic damages of climate change is similarly fantastical. And that’s a problem for climate advocates who spun up the field of attribution science in order to win lawsuits against Big Oil. As leading attribution researcher Friederike Otto put it, “Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind.” The more than 3,000 lawsuits filed against private and public interests on climate liability allegations all rely to one degree or another on the combination of cover-up and climate damages that the UCS workshop argued would be required to prove legal culpability for the fossil fuel industry. Some, like the Suncor case that will soon be heard by the Supreme Court, allege fairly narrow claims against oil and gas companies. According to the city of Boulder, companies like Suncor Energy “knowingly drove climate change and caused concrete harm to Boulder's property and residents” and “compounded this harm by intentionally misleading the public about fossil fuels’ role in accelerating climate change.” For the reasons articulated above, neither of these allegations holds much legal water. If Boulder, the state of Colorado, or any other political entity wants to establish a prospective tax, fee, or regulation against fossil fuel production and consumption, it is free to do so. But asking the courts to issue those penalties on the basis of retrospective legal liability, based on specious statistical analysis, violates the boundaries of robust science and jurisprudence. Indeed, it is precisely democratic legislatures’ failure to pass legally binding limits on fossil fuels that has led climate activists to try to get these limits imposed by the judiciary. The more sweeping iterations of climate liability litigation give the game away here. Cases like Juliana v. United States did not merely seek compensation for discrete harms or redress for narrow statutory violations; they asked courts to recognize an unenumerated constitutional right to a “stable climate.” Since the plaintiffs in Juliana defined a “stable climate” as atmospheric concentrations of carbon under 350 parts per million—a level that was exceeded 40 years ago—their explicit aim with the suit was to invalidate all American energy policy and then supervise a wholesale transformation of the nation’s energy economy. That suit, of course, was dismissed. Nevertheless, the activists persisted. So what the courts rule in Suncor, and related ongoing litigation like Lighthiser v. Trump, will have significant implications for the whole field of climate liability litigation and, indeed, for climate activism more broadly. But even these discrete and glaring problems with the climate liability framework obscure a more essential truth at the bottom of these debates: Fossil fuel consumption is not like smoking cigarettes. Driving cars, shipping goods, using electricity, paving roads, and the countless other applications of coal, oil, and natural gas are not frivolous consumer habits for which the solution to their harm is simple abstinence. Living without fossil fuels will require massive technological improvements, and massive infrastructural investments, in lower-carbon alternatives. These challenges were difficult enough in a period of relatively cheap money, geopolitical détente, and elite prioritization of climate change. But the last few years have irrevocably changed all these conditions. The era of the climate hawk is over. The question is whether the members of the climate movement will, as they did in the 2012 workshop, put their heads together to adapt to an altered material and legal landscape. The Department of Defense is reportedly refusing to issue national security clearances to wind power projects that need it to ensure their development is compatible with radar systems. It could be the latest wrench thrown into ongoing congressional permitting reform negotiations, which had previously stalled when Senate Democrats complained about the Trump administration’s anti-renewables policy agenda. But at least in the view of this author, the negotiators should power through; permitting reform legislation could provide a check on the type of technology tribalism being employed by the Pentagon. RCP8.5, the integrated assessment modeling scenario that most climate-impacts papers used for more than a decade, has been unceremoniously retired. That, as has been covered at length by my Dispatch Energy colleague Roger Pielke Jr., is all for the better. The scenario, which among other things assumed massive increases in global population and coal usage through the end of the century, was never plausible and led both academics and policymakers alike to false conclusions about the likely effects of climate change in the coming decades. X-Energy, an advanced nuclear energy startup backed by Amazon, received a “finding of no significant impact” from the Nuclear Regulatory Commission’s (NRC) environmental assessment (EA) of the four 80-megawatt reactors the company plans to build in Texas. As Alexander Kaufman reports for Canary Media, it’s the first time a reactor project has been approved under an EA rather than an “environmental impact statement,” which tends to number in the thousands of pages and takes years to conduct. This EA, by contrast, was completed in just a few months, another signal that the NRC is taking seriously the need to expedite the licensing and permitting of advanced reactors. Fervo Energy, the next-generation geothermal energy startup, launched an initial public offering last week, to the tune of over $10 billion after its full market debut. Like X-Energy reactors, Fervo’s “enhanced” deep-earth geothermal plants will generate what’s called “clean firm” electricity—24/7 power that produces no carbon emissions. As TechCrunch reports, “like many other energy companies, Fervo has been buoyed by surging demand from data centers and AI companies, which have been desperate to secure electricity to power their facilities.” Left-wing geographer Matt Huber published an excellent op-ed in the New York Times earlier this month, in which he argued that Democrats should stop centering their policy agenda on climate change. As I have argued since the start of the second Trump administration (and, indeed, for many years before that), climate change was never a major priority for even Democratic voters, and progress on emissions and resilience to extreme weather can be better achieved by focusing on lifting up the middle class. “The Democratic Party remains deeply unpopular,” Huber writes. “The way out is to stop elevating a litany of single-issue policies that appeal to the already converted. When it comes to climate change, for now, it might be better to say nothing at all.” Alex Trembath is a contributor to Dispatch Energy and the executive director of the Breakthrough Institute, a policy think tank advancing technological solutions to environmental problems. He is one of the world’s leading advocates for ecomodernism and abundance. Alex’s work on climate policy and politics, energy technology, food and agriculture, and other environmental issues has been published by The Atlantic, National Review, Slate, Issues in Science and Technology, the Boston Globe, Politico, City Journal, the Wall Street Journal, and other leading media outlets. He has served as a fellow and adviser for Case Studies in the Environment, Roots of Progress, the Abundance Institute, and YIMBY Action. Alex also launched and helps organize the annual Abundance conference. He is a graduate of the University of California at Berkeley, where he received his Bachelor’s in environmental economics and policy. Alex lives in Oakland, California, with his wife and son.