Why 2024 will be a crucial year for climate litigation
Amid record domestic oil and gas production in the US and broken promises from fossil fuel companies, climate champions are increasingly looking to the courts to bring about accountability for climate damage.
More than two dozen local and state governments are challenging oil companies on these grounds, while youth plaintiffs have seven pending lawsuits targeting state and federal lawmakers.
Last year brought landmark victories for these complaints, including a groundbreaking ruling in Montana that could force the state to alter its environmentalpolicies. Supporters hope that pattern continues.
“We might look back and say 2024 is the year that climate lawsuits really took off,” said Richard Wiles, president of the Center for Climate Integrity, a non-profit that tracks and supportsclimate complaints.
But obstacles lie ahead. Last week the Biden administration filed a motion indicating it aims to have a major youth-led suit against the federal government dismissed.
Here are eight things to watch for this year.
Groundbreaking Montana ruling enacted
In a stunning August 2023 win, a judge ruled in favor of young Montana residents who claimed the state’s profossil fuel policies violated their right to a clean and healthy environment.
The order, which followed the firstever youth-led constitutional climate trial, represented “the strongest decision on climate change ever issued by any court”, Michael Gerrard, founder of Columbia’s Sabin Center for Climate Change Law, told the Guardian at the time.
The state appealed the ruling to Montana’s supreme court, which said it would review the case. Arguments will be held in spring or early summer, with a final decision expected later in the year, according to Our Children’s Trust, the law firm that brought the suit.
The state’s attorneys called on the court to freeze the ruling in the meantime, whichthe court denied.
“For the time being, what this means is that the state agencies in Montana have to follow the ruling,” said Mat dos Santos, general counsel at Our Children’s Trust.
To comply with the order, the state will be expected to review its environmental policies, such as energy permitting processes, to ensure they account for climate damages, said Dos Santos. The decision also bodes well for a possible favorable final order from the court, Dos Santos added.
Youth take the stand
In Hawaii, a judge is set to hear a youth-led case in June.
The lawsuit claims that the state’s transportation agency failed to cooperate with other regulators to slash carbon pollution.
“This trial will give us keiki a voice to advocate for our rights and to protect our environment,” said Taliya N, one of the 14 young plaintiffs in the case, using a Hawaiian word for youths. Plaintiffs have begun to report for their depositions, whichthey claim have been unnecessarily aggressive.
Late last year, a judge cleared the path for a trial in Juliana v US, the first youth-led case against the federal government. The plaintiffs’ lawyers have asked for a trial date to be set for December.
However,the Biden administration hasindicated it will attempt to get the case thrown out: on Thursday,the justice department asked a US circuit court to stay the case, pending a forthcoming executive petition from the White House.
That petition will argue that “the government will be irreparably harmed” if it is forced to spend time and resources litigating the Juliana case, the Thursday filing said.
It’s a move pulled “straight from the Trump playbook”, said Philip Gregory, a lawyer affiliated with Our Children’s Trust. The previous administration made similar arguments, unsuccessfully, on six different occasions.
Gregory said that Our Children’s Trust would ask the court to deny the justice department’s request for a stay, and called on supporters to urge the Department of Justice to refrain from using executive powers to block the case. The true “irreparable harm” is the climate harms children are facing, he said.
New kids’ cases
In December, Our Children’s Trust brought another federal lawsuit on behalf of a group of California youth. The suit, which targets the Environmental Protection Agency, will proceed toward discovery unless the agency files a bid to throw it out this spring.
Youth plaintiffs have pending litigation in Florida, Utah and Virginia, too. And Rogers said Our Children’s Trust will file “exciting” new complaints this year.
Legal hurdles in climate deception cases
Last year delivered wins for the two dozen cases brought by states and municipalities against fossil fuel companies for allegedly deceiving the public about the dangers of global warming.
For years, defendants have insisted these lawsuits should be heard in federal courts instead of the state courts where they were filed, which are seen as more favorable to the plaintiffs. But in rulings issued in April, May, and January, the US supreme court shot the companies down.
It was a major win from a judiciary that does not always champion climate efforts. (Environmentalists, for instance, are concerned that the supreme court will soon overturn a doctrine that helps agencies tackle the climate crisis.)
Defendants are attempting to dismiss the cases in other ways, includingby claimingthat federal policy
preempts plaintiffs’ claims.
The plaintiffs face challenges – this month, a court ruled that Delaware must limit the scope of a climate deception lawsuit it filed in 2020. But Wiles said he is “very optimistic” overall.
Discovery in climate deception cases
None of the 20-plus ongoing climate deception cases are expected to go to trial this year, but some could enter the pre-trial discovery phase. During this process, plaintiffs’ lawyers can request information about oil companies’ attempts to sow climate doubt.
“Discovery is the second most important part of the trial other than the actual decision, said Wiles. The information will likely remain private this year, but could be made public as the cases move closer to trial.
Three lawsuits brought by Massachusetts, Rhode Island and Honolulu, Hawaii, have already begun the process, and more could soon join that list.
New climate deception cases
State and local governments are expected to bring new suits against big oil, with new kinds of plaintiffs potentially entering the arena.
California’s Gavin Newsom became the first governor to sign onto a climate case last year, while the Makah Indian Tribe and the Shoalwater Bay Indian Tribe became the first tribal governments to do so.
Twenty of 26 climate deception lawsuits have been filed by the law firm Sher Edling. But new firms – some with little or no previous experience in climate litigation – have begun to file similar cases in jurisdictions ranging from Multnomah county, Oregon, to San Juan, Puerto Rico. That could indicate a tipping point for the wave of lawsuits, experts say, as it shows the suits are becoming commercially viable.
Cases will also likely go after new defendants. Last year’s Multnomah county complaint was the first to target the consulting firm McKinsey – a sign of a burgeoning focus on firms that are said to enable oil companies.
New legal theories are also gaining steam. In recent years, governments have alleged that fossil fuel companies have broken racketeering laws by conspiring to sow doubt about climate change. It’s an ambitious claim more plaintiffs will likely make, said Wiles.
Last year, the non-profit Public Citizen suggested companies could be tried for homicide – a legal theory that has yet to be tested.
“There’s so much more potential here,” said Wiles. “We’re still at the beginning stages of climate litigation, there’s so much more that’s still to come.
Other climate cases
2024 could bring big news in other kinds of climate litigation, too. A wave of suits are attempting to hold corporations such as Delta Airlines, Nike, and Etsy accountable for greenwashing.
Other complaints are attempting to hold plastic producers accountable for environmental damages, in part due to climate impacts. Last year, California attorney general Rob Bonta called for a comprehensive legal strategy to take on plastic pollution and launched an investigation into the fossil fuel and petrochemical companies that produceplastics.
“We could see a whole new flank of plastic cases,” said Wiles.
Companies are fighting back against climate advocates with their own suits. On Sunday, Exxon filed a lawsuit to block a vote on a climate resolution brought by Follow This, a Dutch green activist investor group.
Conservation groups are also continuing to target specific polluting initiatives, such as the massive oil drilling project in Alaska that the US approved last year.
Meanwhile, climate lawsuits abroad face major hinge points. This year, a Dutch court will consider an appeal of a ruling against Shell that for the first time in history required a private company to curb its greenhouse gas emissions. The suit was brought by the Dutch arm of advocacy organization Friends of the Earth, which on Friday also sued ING bank over accusations that it is fueling the climate crisis.
Canadian youth plaintiffs will amend a constitutional climate case against their national government at the request of a federal court which said a narrowed version could be legally viable. The European court of human rights is expected to rule on major challenges, including one brought by six Portuguese youth who allege that 33 nations have not enacted strong enough climate policy.
Will Biden join the fight?
Last year, Senator Bernie Sanders and other Democratic lawmakers urged the Biden administration to file its own lawsuit against big oil, something Wiles said would be “historic” and “huge”.
The Department of Justice declined to comment on potential suits of this kind.
If Joe Biden takes that advice, he could win back the support of some climate voters and inspire action from other countries, said Wiles.
“It would be the biggest news in the world in climate litigation,” he said. “Hands down.”