Climate accountability
A growing tide of legal action is increasing pressure on fossil fuel companies
On 26 May 2021, a Dutch court came to a landmark decision, ordering Royal Dutch Shell to cut its greenhouse gas emissions by 45 per cent by 2030 compared to 2019 levels. If upheld, the ruling will force Shell to go without 740 million tons of carbon dioxide a year – roughly Germany’s total annual emissions – requiring it to reduce its output of oil and gas by three per cent a year, flatten natural gas production and cut oil sales by 30 per cent from 2020 figures. Crucially, the ruling includes so-called ‘scope 3’ emissions, meaning that Shell is liable for emissions from vehicles burning its petrol. The ruling centred on the notion that Shell owed an ‘unwritten standard of care’ to Dutch residents. Predicting whether similar rulings will now occur around the world is complicated. ‘I can’t imagine that the Dutch Civil Code will hold much sway with the US federal court system,’ says Professor Paul Griffin of the University of California, Davis, a leading authority on climate finance. ‘Despite dozens of US lawsuits by cities, states and people facing the consequences of climate change, the industry has not yet been held liable by the Supreme Court for producing and marketing fossil fuels, even though strong evidence attributes greenhouse gas emissions to oil and gas operations.’ So far, the US courts have certainly taken a more cautious approach. In 2018, City Attorney Barbara Parker represented the people of the state of California in a case asserting claims of ‘public nuisance’ against the top five fossil fuel companies, including Chevron, Royal Dutch
Shell and Exxon Mobil – collectively responsible for 11 per cent of the total carbon dioxide and methane emitted into the atmosphere since the Industrial Revolution. The specific ‘public nuisance’ claimed was global-warming-induced sea-level rise. The court, however, saw the claim as prohibitively complex. ‘The scope of the plaintiff ’s theory is breathtaking,’ read the judgment. ‘It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales... Anyone who supplied fossil fuels with knowledge of the problem would be liable.’ Nevertheless, legal action against fossil fuel companies is on the rise. ‘What we’re seeing now is a huge groundswell, seeking to hold fossil-fuel interests accountable,’ says Geoffrey Supran, who researches climate accountability at Harvard University. ‘That’s everything from dozens of cities and state lawsuits, especially in the USA, but encompassing more than 1,000 cases worldwide.’
There are differences in approach internationally. ‘They’re all over the place. You’ve got the theory that fossil fuel companies are liable because they failed to disclose important information – that’s inflammation; then you’ve got the theory that they didn’t exercise due care – that was the Dutch court’s theory against Shell; then you’ve got the public nuisance idea,’ says Griffin. One ongoing case against Exxon Mobil in Massachusetts even claims that the company knowingly produced a deficient product. But from a broad perspective, more unites such cases than divides them.
‘The broad charge is always the same, which is that various constituencies, whether it be shareholders, customers or the general public, have been misled by these companies in ways that have led to climate delay and exacerbated damages,’ says Supran, whose team has been gathering evidence of misleading rhetoric for use in future cases,
particularly against Exxon Mobil, the world’s largest oil and gas company. In one study published in 2017, he and his team demonstrated that, throughout the 2000s and 2010s, ExxonMobil overwhelmingly acknowledged basic climate science in private and academic circles, yet promoted scepticism of that same science in public-facing communications – a tactic that could fall within the bracket of corporate deceit. Supren’s most recent study, coauthored with Harvard University professor Naomi Oreskes, shows that from the mid-2000s, the company’s outright denial of climate change evolved into subtle lobbying and propaganda that downplayed climate change’s severity and shifted responsibility onto consumers.
Using algorithmic techniques to scan more than 180 Exxon Mobil documents – including academic papers, internal communications and advertisements – the research shows that the company routinely stated that climate change was a ‘risk’ rather than a reality. ‘Publicly, the company’s communications have fixated on consumer energy demand rather than on demand for their fossil fuel products. This mimics the tactics of the tobacco industry, shifting responsibility away from the company and onto its customers,’ says Supran.
Allegations of corporate deceit against fossil fuel companies have significant ramifications for the way that we think about climate change. Supran and his co-authors believe that their research challenges the conventional viewpoint of individual responsibility. ‘There’s no getting around the fact that these were and are well-funded, co-ordinated attempts to delay climate action,’ he says. ‘Evidence from hundreds of pages of internal documents substantiates it. Traditionally, their products played a formative role in the development of modern society, but the point is that for a long time, we’ve had the renewable technologies and the knowledge to transition in an orderly and just way. The fossil fuel industry, rather than being a part of it, stayed silent for as long as it could and then did everything in its power to sabotage the science and slow action down. Unfortunately, it has been incredibly successful.’