California Gov. Gavin Newsom’s filing of a lawsuit against Big Oil last month was monumental — and overdue.
The importance of the claims regarding the responsibility of Shell, Chevron, Exxon, BP and ConocoPhillips for creating a public nuisance by damaging the environment, deceiving the public on the harms of fossil fuels, and harming California’s natural resources cannot be overstated. Community groups have made these arguments for a long time, but it is a positive step forward to have an entity with the political strength and financial backing of the state of California to even have a chance at making substantive change. It can only be hoped that the filing of this lawsuit by the fifth largest economy in the world sends a message regarding the use of law as a tool for fighting environmental injustices that the U.S. and the world need to address.
The United States has long been behind other countries on climate change litigation. Given the historical entrenchment of the right to property, the recognition of legal personhood for corporations, and a general cultural suspicion of government encroachment on personal liberty, climate cases have a sparse and difficult history in the U.S.
Many of the well-known cases against the government or companies for environmental damage have not fared well before U.S. courts. For example, Kivalina v. ExxonMobile Corp. (2009) is a direct predecessor to the California suit. The community of Kivalina, Alaska, sought damages from Exxon for flooding caused by climate change. The case was dismissed as a political issue over which the court had no jurisdiction and because of the difficulty of attributing pollution to a single entity.
Another case that garnered attention was Juliana v. United States. Filed in 2015, a group of youth plaintiffs argued the government violated their constitutional rights, as well as its obligations under the public trust doctrine, by failing to address climate change. The case has been back and forth with denials and appeals since its original filing. To date, no court has made any substantive decision on the merits, though U.S. District Court Judge Ann Aiken, one of the first judges to hear the case, recognized the right to a pollution-free climateas a fundamental right in the United States — a claim widely dismissed by others.
Given this history, what makes the recent filing by California any different?
It is a fair question, given the current political divides across the U.S. and within the judicial system. But this moment in 2023 is very different from those in which Kivalina and Juliana were heard. Despite not even a decade passing since the latter, the global sea change on climate change litigation, and recognition of the dangers of inaction from those with the power to make change, is significant.
The United States often holds up its own legal system up as superior to others, but it has been behind in this particular area. Countries as diverse as the Netherlands, Colombia, Bangladesh, Australia, India, Germany and South Africa have all had cases decided by their high courts either against the government or companies (or both) for failing to do more to prevent climate change. While not all laws are analogous to those in the U.S., many of the underlying legal arguments surrounding government responsibility, public trust and transparency are the same across different legal systems. Unlike in the U.S, however, where these arguments have struggled in the face of corporate and government power, cases around the world are increasingly providing examples of decisions protecting the environment and public over those in power.
While it has been slow compared to many other countries, a shift in perceptions about responsibility for climate change has begun in the United States. In a case decided this past summer, Held v. Montana, the judge ruled that the state of Montana violated its constitution by failing to consider climate change when approving fossil fuel projects. While Montana is sure to appeal this decision, it is a major leap forward, made even more striking coming from a state that relies heavily on the fossil fuel industry.
Which brings us back to California’s suit against Big Oil. This is not the first, nor only, lawsuit of this nature that has been filed. Over a dozen other states are suing oil companies for the role they have played in climate change, supported by a recent Supreme Court decision that declined to hear the oil companies’ petition to have the cases thrown out for lack of jurisdiction.
The lawsuit filed on behalf of the people of California, however, is arguably the most prominent of these cases and a sign that the legal action in the U.S. may be finally catching up on climate litigation as a tool to address the biggest challenge facing us today. In addition to being one of the world’s largest economies, California has been a leader on environmental issues at home and abroad, even when the U.S. has not.
Moreover, in California this leadership has transcended some of the political divides that immobilize other states and the country as a whole. California’s adaptation and mitigation polices on an array of issues, while not perfect by any means, are often ahead of what is happening elsewhere. California is also a global leader, sending representatives to global climate conferences as well as hosting them here. The fact that California is finally jumping on the bandwagon and using the law as a tool to make those largely responsible for climate change pay their share is a notable step.
It is impossible to predict what the courts will do, and past decisions do not provide much support. But the cultural, political, legal and social climates are different than they were even a few years ago. California has the political and economic power to carry this suit all the way, and should the political will prevail, use the ripples from this case — even before a decision is rendered — to bolster the fight against climate change and hold those responsible to account, and more important, to action. Let’s hope California is up to the challenge.
Dana Zartner, JD, Ph.D., is a professor of international and comparative law with a focus on environmental justice at the University of San Francisco.