News

Jun 19, 2023

Climate change solutions: Lawsuits are gaining traction.

Listen to What Next: It’s deceptively hard to get an answer to the question “How hot is it?” these days. But if you look closely, you’ll get the gist. In El Paso, Texas, they have clocked triple-digit

Listen to What Next:

It’s deceptively hard to get an answer to the question “How hot is it?” these days. But if you look closely, you’ll get the gist. In El Paso, Texas, they have clocked triple-digit temperatures for more than a month at this point. In Florida, it’s getting hot enough that coral reefs are dying. And in Las Vegas, the concrete sidewalks are a sizzling 144 degrees.

Dharna Noor knows all about the heat. She covers the climate for the Guardian. For her, this summer has felt both horrifying and inevitable. But Noor is particularly interested in climate solutions. And I called her up to talk about a tactic she’s seeing more and more these days—local municipalities, and even just individual people, taking climate change to court.

Sometimes, it’s people suing the government, trying to get it to regulate greenhouse gases better. Sometimes, it’s the government suing oil companies over their role in the climate disaster. And, sure, litigation is not new, but, Noor says, the broad implications of this litigation are.

“The new trend that we’ve seen explode over the past five years is this idea of holding somebody responsible for climate change itself. So, not the emissions from a particular coal-fired power plant or the emissions related to one specific highway,” Noor said, “but rather this idea that climate change itself has been created by specific actors.”

Worldwide, there are hundreds of these lawsuits. Can we sue our way out of the climate crisis? Probably not. But on a recent episode of What Next, we looked into why a heck of a lot of lawyers are trying. Our conversation has been condensed and edited for clarity.

Mary Harris: You’ve said that it feels like something’s changing with climate litigation, and there’s certainly more of it. What is it that’s changing? Could you put your finger on it?

Dharna Noor: There’s a few big shifts that we’ve seen. The one thing that has made a huge difference is that, frankly, more people are talking about these suits, and that means that more people are filing these suits. As we see these cases start to gain steam, we are really starting to see the patterns in the ways that the folks filing these suits are aiming to use litigation to bring about climate accountability.

You’ve said that there are a couple of broad categories that these lawsuits fall into. What are they?

In the U.S., there’s two broad categories of climate accountability lawsuits. The first one is the constitutional suits, and those are directed at governments, whether that’s state governments or, in one case, the federal government. All of the ones that we’ve seen in the U.S. have been brought by youth plaintiffs, which is pretty interesting.

They’re basically saying climate change is unconstitutional, right?

Yeah, exactly. For various reasons, they say that the government’s enabling of the climate crisis—and its refusal to stop, for instance, leasing fossil fuels—is threatening their constitutional rights.

How does that work at the state level vs. the federal level?

There actually are some states that include in their constitutions a right to a clean and healthful environment. Montana is one of them. But not all state constitutions include that kind of language. And so, there are other constitutions—like, for instance, the federal Constitution—that don’t guarantee any specific environmental rights, but of course do guarantee rights like those to life, liberty, and property. In those cases, the lawyers argue that the continuation of climate change and the government’s perpetuation of it is in violation of those basic inalienable rights.

I know there’s been a lot of attention on this one particular case, Held v. Montana, where a group of young people sued the state of Montana because of that part of their constitution that guarantees them a healthy environment. I know you went there to look at how this trial played out in Helena. Can you tell me what you saw?

Being in the courtroom in Montana to see the Held v. Montana trial was pretty moving. It really felt like history was being made.

It’s the first of these to go to trial, right?

Exactly. It was the first-ever trial in a constitutional climate lawsuit in the U.S. There are 16 kids who brought the lawsuit, and the majority of them actually testified and gave these really personal, really moving testimonies about the ways that climate breakdown has threatened their ways of life. We heard testimony from the named plaintiff, Rikki Held, who’s now 22, and she talked about how climate change is threatening her family’s way of life on their ranch in Broadus, Montana. Due to threats like drought, all of those essential components of ranch work have been threatened. She said that amid record heat and record drought in the past few years, it’s been a lot harder to know how exactly her family is going to get water for their cattle. She said that it’s been much, much harder to do ranch work for any extended period of time because of wildfire smoke in the summers. She said that unpredictable weather patterns in general have made it really difficult to think about what the future of the ranch could look like, not just for her, but also for her family one day, if she chooses to have one.

This case being a very Montana case, I wonder if it limits its impact. If the verdict comes back in these kids’ favor, will it have any impact on places other than Montana?

While the technical legal precedent will only apply within Montana’s borders, I do think that there’s something to be said for judges in other states and potential youth plaintiffs and others in other states looking to that kind of victory and saying, if you’re a judge, “Hey, maybe I’m going to be more likely to take a case like this seriously.” Or, if you’re a kid somewhere else, maybe you look to these kids in Montana and you say, “Hey, well, I’m also really attached to my land in, I don’t know, the beautiful state of Maryland.”

But the Montana-ness of the lawsuit, it’s also being used as a cudgel by the government, which is being sued here. They’re saying, “Yes, there are all these climate changes happening, but you can’t blame Montana for it. Like, that wildfire isn’t because of what we’ve done here, necessarily. We’re in a big world. And so, why are we being held accountable?”

Totally. Honestly, this is a difficult point that the state has raised because there’s some truth to the idea, obviously, that Montana is not solely responsible for climate change. Obviously, Montana is one small emissions piece of the larger global pie. That said, many experts who gave testimony at the trial noted that Montana’s footprint alone is actually larger than that of some countries. And, as some of the attorneys on the case and some advocates raised, this idea that if we’re all responsible, then no one’s responsible is really dangerous because obviously there’s not going to be one particular lawsuit that targets everyone who’s ever been responsible for climate change. And so, if nobody acts, then we’re going to just perpetuate the problem.

Let’s get into the second category you mentioned. This isn’t individuals suing the government. It’s the government suing oil companies. And a lot of these cases are focused on misinformation—the idea that oil companies knew about climate change early on. Can you tell me about why and how? What’s their proof here?

There is a well-documented history of oil companies sowing doubt about the climate crisis. The Exxon Knew investigation dug up tons of information on that history of misinformation, PR campaigns, efforts to cover up climate science. There was a study just this past January that actually showed Exxon had made what it called breathtakingly accurate climate predictions back in the 1970s. It looked back at the climate scientists who were advising Exxon, and those scientists essentially made these really, really close predictions of what the climate crisis would look like and attributed those changes to fossil fuels. So, the idea is, if Exxon knew that fossil fuels were causing climate change and knew how bad it was going to be, then why didn’t they do something about it?

It sounds like tobacco litigation. Could you tell me about one of these cases and the details that are coming out and how the government came to the decision to sue?

It’s a lot like tobacco litigation, and in many cases, that’s by design. Many of the lawyers who are working on these cases are looking for Big Oil to have what they’re calling its “tobacco moment.” The most recent one of these misinformation lawsuits was filed just last month by Multnomah County, which is the largest county in Oregon. And this case focuses not only on the broad threats of climate change to Multnomah County, but rather it focuses on this really specific instance. So, in June 2021, there was this unprecedented heat dome that blanketed the Pacific Northwest. It killed dozens of people in Multnomah County, especially in Portland, and created this real crisis situation. And so, this lawsuit draws on all of that research showing that oil companies knew that the climate crisis was coming down the pipe if they didn’t do something to change their products. And it also draws on research that shows that the heat dome that they saw in 2021 was exacerbated by climate breakdown. And so, they took these two things together and said, “OK, then we should be holding fossil fuel companies and interest groups accountable for their role in that.”

I’m curious how a local government like Portland decides it’s in their interest to sue an oil company, because litigation is expensive. It takes a lot of resources.

The fact that climate disasters are becoming so much more expensive for local governments is a huge catalyst for these lawsuits. Maybe they won’t win everything. Frankly, they’re asking for a ton of money, like billions and billions of dollars to upgrade infrastructure and create climate mitigation plans and all of these kinds of things. But there is an idea that if you’re going to be spending all of that money to deal with climate disasters, there’s a desperate need to get ahead of the next disaster and to come up with the money to fund the changes that are needed before the next disaster happens.

There’s one more strategy that I want to make sure we talk about that’s associated with these disinformation cases. This is using racketeering charges to go after oil companies. Can you explain who’s doing this and when it emerged?

The first racketeering climate disinformation case was brought last year by municipalities in Puerto Rico.

This was a lawsuit over Hurricane Maria, right?

Yes. It was a federal lawsuit against all these oil and coal firms for their role in 2017’s Hurricane Maria. And it said that those oil and coal firms had been engaged in a kind of conspiracy that could be likened to what mob bosses had wielded in the past, essentially, saying, “You all put your heads together. You decided on a strategy of covering up climate science, sowing doubt about climate change, and continuing to peddle your products anyway,” and used a RICO suit to do that.

The Big Oil companies have been sued a lot. They have huge litigation teams, and they have a lot of money to sink into these cases. In the past, they’ve managed to fend off accountability successfully. But I get the sense from talking to you that you think their luck could be running out. Why do you feel like that?

Honestly, because climate change is becoming an unavoidable threat. For so long, local governments have thought of climate change as something to put in the background. But now lots of leaders are saying, “No, this is actually an integral part of what it means to run a government now. We’re not going to be able to run our government unless we, for instance, invest in flood plains, invest in making sure our agriculture is drought-resistant, and invest in making sure that we have roads that don’t flood every time it rains.” And many of them are starting to say, “Hey, if we’re going to be the ones who are held responsible for this, maybe we need some help in doing that. And maybe we shouldn’t be the ones who have to bear the costs of this.” Perhaps there’s someone else who should be helping, and perhaps that someone else is the industry that created the problem in the first place.

What would a “tobacco moment” for climate change really look like? Obviously, taking money from oil companies could make trafficking in fossil fuels a lot less appealing. But there’s something else that’s powerful about this comparison: It means you can look at what’s happening now and compare it to what happened when Big Tobacco got taken to court. Then you can figure out, Is what’s going on with these climate lawsuits really an inflection point?

One big turning point in the tobacco litigation was the moment where more people started to get involved.

So not just advocates.

Yes, exactly. We’re, in some ways, starting to see that now. Multnomah County in Oregon, for example, their case was brought by law firms that had focused on things like asbestos in the past and had never brought climate-focused litigation. There’s another moment that was really important with Big Tobacco, and that was the moment that the industry’s trade associations and enablers got some of the heat. We’re also starting to see that now. There’s lawsuits, for instance, that are targeting the American Petroleum Institute, which is the largest trade association for the fossil fuel industry.

The biggest difference for me between the Big Tobacco litigation and the Big Oil litigation is that tobacco was a huge problem for the U.S., right? It created all sorts of health risks. And like the oil industry, it made a lot of people very rich in the process. But our entire economy does not run on tobacco. The challenge ahead for climate litigation is much, much larger than what it looked like for the tobacco lawsuits.

Get more news from Mary Harris every weekday.

I was looking at what the oil companies had to say about these lawsuits, and I was struck by something the counsel for Chevron said. He looked at the disinformation lawsuits, for instance, and he called them wasteful. He said, “The climate crisis requires a coordinated and thoughtful federal policy response, not a disjointed patchwork of lawsuits in state courts.” And I’m not sure I disagree with him, but in the absence of a coordinated and thoughtful federal policy, it seems like taking the oil companies to court and making them pay for massive litigation doesn’t seem like a bad tactic to me. Is that part of the goal here?

One of the main critiques that you hear of these kinds of lawsuits is that, really, this should be a space for legislation, not for litigation. But as you’re saying, we really have not seen the kind of planned response to climate change that I think that we need and that advocates certainly think that we need. The idea of the litigation is not to solve climate change through the courts but rather it’s to use the courts to push the actors who would be responsible for that coordinated federal policy response to actually enact it.

And a lot of it is an attempt to teach people that climate change is not all of our responsibility in the way that we’re sometimes told. The people who are most responsible for climate change are particular people with names and profit motives. And so, a lot of it is also about naming villains who bear responsibility.