2021 in review: Climate accountability in the courts
EXXONKNEWS looks at how efforts to hold Big Oil accountable progressed through the courts in 2021 — and what’s on deck for next year.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
Welcome to EXXONKNEWS’ year-in-review series, where we’ll highlight 2021’s most pivotal moments in the fight to finally hold Big Oil accountable for causing, lying about, and perpetuating the climate emergency.
Today, we’re looking back at the progress climate liability lawsuits made in courts across the country — even with the fossil fuel industry fighting them every step of the way.
Four new cases were filed against Big Oil this year — and they focused on the industry’s fraud.
Vermont, New York City, Annapolis, and Anne Arundel County, Maryland, filed new lawsuits against ExxonMobil and other oil and gas majors, bringing the total number of communities fighting for climate accountability in the courts to 26, with Vermont Attorney General T.J. Donovan becoming the seventh attorney general in the U.S. to file a climate liability suit.
The latest cases all argue that fossil fuel companies are violating state or local consumer protection laws by lying to and misleading consumers about the climate damages the defendants — including Shell, Chevron, BP, and the American Petroleum Institute — knew for decades that their products would cause.
The lawsuits from coastal Annapolis and Anne Arundel County also seek to make the fossil fuel defendants pay their fair share of the enormous costs to protect infrastructure, businesses, homes, and residents in their communities from worsening climate damages, including more frequent and severe storms, flooding, and rising seas.
Massachusetts won a major ruling against ExxonMobil, bringing its consumer protection case against the oil giant closer to trial.
In June, a Massachusetts state court judge denied ExxonMobil’s motions to dismiss a lawsuit brought by Attorney General Maura Healey that argues the company used deceptive advertising to mislead consumers and investors about the dangers of its fossil fuel products.
The Massachusetts lawsuit, originally filed in 2019, is the first of its kind to get to — and clear — the motion to dismiss hurdle in state court, bringing the suit one (major) step closer to trial.
“To this day, Exxon is continuing to promote its fossil fuel products to consumers as good for the environment and misleading investors that demand for fossil fuels will remain strong for the foreseeable future,” Healey said after the ruling. “We look forward to litigating the merits of our claims and stopping Exxon’s continued illegal deception.”
With accountability getting closer, terrified oil and gas companies brought their attacks on these lawsuits all the way up to the U.S. Supreme Court.
Big Oil tried relentlessly to get climate liability lawsuits removed from state court, where they were filed, and into federal court, where the industry hopes it will be easier to escape accountability. In 2021, a climate liability lawsuit even went all the way up to the U.S. Supreme Court, albeit on a narrow procedural issue.
After four appeals courts in 2020 agreed that climate accountability suits filed in state court belong in state court, Big Oil’s lawyers asked the Supreme Court to decide whether those appeals courts should consider additional arguments for federal jurisdiction. They got their wish, and once the justices agreed to consider that very technical question in a lawsuit from the City of Baltimore, defendants asked the high court to go even further and rule that Baltimore’s case and “others like it” should all be sent to federal court.
Thankfully, the justices did not go along with Big Oil’s bait and switch, but they did hand the industry a narrow technical win, sending Baltimore’s case (and others in Rhode Island, California, and Colorado) back to circuit courts to review additional jurisdictional arguments.
When Big Oil threw another Hail Mary to the high court — asking the justices to overturn a Ninth Circuit ruling that rejected the industry’s arguments in favor of federal jurisdiction in Oakland and San Francisco’s climate liability suits — SCOTUS denied their request entirely.
Lower courts across the country kept handing Big Oil defeats.
Meanwhile, every federal court to decide a motion for remand agreed, once again, that climate liability lawsuits filed in state court belong in state court. In 2021, four federal district courts — in New Jersey, Minnesota, Hawai'i, and Connecticut — sent climate liability cases back to state court.
The fossil fuel industry is (of course) appealing all those rulings, but it’s been very encouraging that judge after judge has rejected the industry’s efforts to misrepresent these lawsuits as efforts to curb emissions or establish federal climate policies.
In Hawaii, U.S. Judge Derrick K. Watson wrote that the oil companies’ arguments “misconstrue” the claims made by Honolulu, which are about “alleged concealment of the dangers of fossil fuels, rather than the acts of extracting, processing, and delivering those fuels.”
In Minnesota, U.S. Chief Judge John Tunheim found that Minnesota Attorney General Keith Ellison’s lawsuit “does not bring claims capable of addressing the panoply of social, environmental, and economic harms posed by climate change.” Instead, he wrote, the state’s lawsuit against ExxonMobil, Koch Industries, and the American Petroleum Institute “far more simply, seeks to address one particular feature of the broader problem — Defendants’ alleged misinformation campaign.”
Will 2022 see the first climate accountability trial against Big Oil?
As we enter the new year, seven federal appeals courts across the country are now positioned to resolve crucial questions about the proper venue for climate accountability lawsuits. Should courts continue to rule against these oil and gas companies, and on behalf of the communities seeking justice, 2022 could see a wave of climate lawsuits finally moving toward their rightful day in state court.
“This past year was all about delay,” our executive director, Richard Wiles, told E&E News. “This next year is about finally moving forward toward trial, or not. That’s the step we’ve been waiting for.”
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