Why Lawsuits Won’t End Big Oil’s Influence

Welcome to Dispatch Energy! Since the Democrat-led Congress in 2009 attempted, without success, to impose a cap on carbon emissions, climate advocates and policy entrepreneurs have devised a variety of inventive mechanisms to curb fossil fuel use by other means. These have ranged from the poorly thought out but largely nonviolent civil demonstrations against projects like the Keystone XL pipeline to the anti-Big Oil #ExxonKnew public relations campaign. More recently, however, supporters have pushed a wave of coordinated lawsuits against oil and gas corporations and the government regulators who have failed to rein in the industry. 

These so-called “climate liability” lawsuits have progressed to the appellate courts. In 2024, the 9^th Circuit heard and dismissed the famed children’s climate lawsuit that sought a constitutional “right to a stable climate.” More recently, the Supreme Court agreed to hear Suncor Energy v. Boulder County, a case brought against Suncor Energy and Exxon that seeks to hold fossil-fuel companies responsible for damages tied to climate change. A ruling in that matter is anticipated next year, with consequences for more than 3,000 similar suits filed by activist groups, attorneys general, and other plaintiffs.

Regardless of the exact legal particulars and venues, the underlying theory behind all these suits remains essentially the same. Emissions from fossil fuels drive climate change. Fossil fuel companies and policymakers knew this. Therefore, courts should declare these companies legally liable, punish them financially, and impose restrictions on fossil fuels. 

Up to now, these suits have not gained meaningful traction. We should hope that remains true. They amount to an effort to override the deliberative democratic policymaking process by forcing climate targets through judicial fiat. The route to legitimate climate policy runs through the legislative arena, even if that course is daunting.

Activist climate litigants drew their new legal playbook from the tobacco industry lawsuits of the 1980s and 1990s. In a 2012 workshop hosted by the Union of Concerned Scientists (UCS), leading climate advocates observed that “a key breakthrough in the public and legal case for tobacco control occurred when internal documents revealed that the industry had knowingly misled the public.” 

The tobacco parallel guided climate advocates toward two methods for establishing legal accountability for climate damages caused by fossil-fuel producers. First, they pledged to demonstrate that the fossil fuel industries “deceived the public” and “robbed humanity of a generation’s worth of time to combat climate change,” as the #ExxonKnew site would later describe it. Second, as the UCS workshop proceedings explain, “participants identified the need for robust methodologies to quantify and attribute present-day damages from climate change impacts.”

Since then, they have attempted—and in my view, failed—to prove either of these propositions.

Begin with the alleged scientific cover-up. What we now regard as mainstream climate science emerged mainly in the late 19th and early 20th centuries. The first presidential committee on climate change was convened by President Lyndon B. Johnson in 1965. By the late 1970s and early 1980s, the core science of human-caused warming had been broadly disseminated through scientific journals, government reports, major newspapers, television coverage, congressional hearings, and international scientific assessments. Oil companies themselves often publicly acknowledged climate risks and funded mainstream climate research alongside universities and federal agencies. 

The trouble with climate change is not simply that a few American corporate actors launched unscrupulous marketing efforts in the 1980s and 1990s, which is the impression conveyed by the influential Inside Climate News investigations into Exxon and other oil and gas companies. Rather, climate change is the cumulative outcome of centuries of greenhouse gas emissions from global fossil fuel combustion and extensive land-use changes. Most of those fossil fuel reserves were, and remain, owned and produced by governments, not private firms, and the bulk of today’s reserves reside in low- and middle-income nations, not affluent ones like the United States. Phasing out the fossil fuel industry is far from as straightforward as these suits imply.

Climate activists and scientists have also introduced a new form of statistical analysis to link natural disasters and extreme weather to human-caused climate change, even though the consensus of the Intergovernmental Panel on Climate Change has yet to detect a global rise in the frequency or intensity of most of these events. Instead of focusing on broad trends, the newer climate “attribution analysis” compares a real disaster with a hypothetical, counterfactual disaster that supposedly would have occurred in a world without global warming. For example, the organization World Weather Attribution asserts that last year’s wildfires in Southern California were 35 percent more likely than they would have been without warming.  

Yet this approach to analysis is illogical because those counterfactuals themselves are illogical. It makes little sense to imagine the damage the Palisades fire would have inflicted on a modern, affluent, densely populated Los Angeles without the very fossil-fueled conditions that helped create that city. Climate change may have heightened the heat and dryness that accompanied the fire, but the fire itself was probably sparked by arson, intensified by governmental inefficiency, and shaped by a multitude of factors including overgrown vegetation, inadequately prepared homes, empty reservoirs, and urban planning policies. 

Assigning meaningful responsibility for the effects of global warming to any single company or nation is methodologically infeasible. Doing so in a way that clearly establishes legal liability for the economic damages of climate change is likewise fantastical. And that’s a problem for climate advocates who built attribution science to win lawsuits against Big Oil. As leading attribution researcher Friederike Otto put it, “Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind.”

The more than 3,000 lawsuits filed against private and public interests on climate liability hinge to some extent on the combination of cover-up claims and alleged climate damages that the UCS workshop argued would be necessary to prove legal culpability for the fossil-fuel industry. 

Some, like the Suncor case that will soon reach the Supreme Court, bring fairly narrow charges against oil and gas companies. Boulder contends that companies such as Suncor Energy “knowingly propelled climate change and caused concrete harm to Boulder’s property and residents” and “exacerbated this harm by knowingly misleading the public about the role of fossil fuels in accelerating climate change.” 

For the reasons outlined above, these allegations do not carry much weight in law. If Boulder, Colorado, or any other government entity wishes to establish a prospective tax, fee, or regulation on fossil fuel production and consumption, they may do so. But asking the courts to impose penalties based on retrospective liability, grounded in questionable statistical analysis, breaches the boundaries of sound science and jurisprudence. 

Indeed, it is precisely the failure of democratic legislatures to adopt legally binding limits on fossil fuels that has driven climate advocates to seek these limits through the judiciary. The more sweeping forms of climate liability lawsuits reveal the flaw. Cases like Juliana v. United States did not merely seek compensation for discrete harms or redress for narrow statutory violations; they urged courts to recognize an unenumerated constitutional right to a “stable climate.” Since the plaintiffs in Juliana defined a “stable climate” as atmospheric carbon concentrations below 350 parts per million—a level exceeded over four decades ago—their explicit aim with the suit was to invalidate all American energy policy and then oversee a comprehensive transformation of the nation’s energy economy. 

That suit was, of course, dismissed. Nevertheless, the activists pressed on. Consequently, whatever the courts decide in Suncor, and in related ongoing cases such as Lighthiser v. Trump, will carry significant implications for the entire field of climate liability litigation and, indeed, for climate activism more broadly.

But beyond these specific and glaring flaws in the climate-liability framework lies a more fundamental truth: Fossil fuel consumption is not comparable to smoking. Operating vehicles, shipping goods, using electricity, paving streets, and the myriad other applications of coal, oil, and natural gas are not trivial consumer habits with a simple antidote of abstinence. Surviving without fossil fuels will demand sweeping technological advances and vast infrastructural investments in lower-carbon alternatives. 

These hurdles were already significant when capital was relatively cheap, geopolitical tensions were lower, and elites prioritized climate policy. But the past few years have irrevocably altered those conditions. The era of the climate hawk is over. 

The real question now is whether members of the climate movement will, as they did during the 2012 workshop, come together to adapt to a changed material and legal landscape.