There Are Nearly 2,500 Climate Lawsuits. This Is the One to Watch.

Climate change lawsuits have now joined the ranks of impact litigation. Just as claims against the tobacco industry led to a major transformation in the way cigarette sellers were required to do business, and claims against opioid manufacturers have led to multimillion-dollar settlements, an emerging run of success in climate change litigation has fueled hopes that Big Oil will soon be called to account—and, perhaps, change or die. In short, a number of cases stand to shake up the climate crisis debate in unprecedented ways.

Those not following climate cases closely might be surprised to learn of their sheer number. The Sabin Center for Climate Change Law at Columbia Law School and the prestigious law firm Arnold & Porter have joined forces to produce two climate change litigation databases: one for the U.S., and one for the rest of the world. As of this writing, they report 1,678 U.S. cases, and an additional 810 globally—for a grand total of 2,488. Many of these will not ultimately succeed, but their sheer number and their creative diversity portend good things for those concerned about halting and uncertain political progress. Two current cases, one from Montana and one from Hawaii, are particularly noteworthy.

Much has already been written about Held v. Montana, in which a group of 16 young state residents sued to enforce their right under the Montana Constitution to a healthy environment. They challenged a state law that prohibited state agencies from considering the environmental impact of greenhouse gas emissions; the court held the provision at odds with the youths’ constitutional rights, and therefore struck it down. Hereafter, climate considerations must factor into decisions impacting agency decisions.

Even though the court did not require the state to remediate the damage already caused by this constitutional violation, the decision is profound for reasons that will resonate beyond Montana. First, the court spent more than 50 pages describing the devastating effects of climate change generally, and within Montana specifically, and how the crisis has impacted the lives of the kids who brought the suit. (The effects on Native American kids and disabled children are particularly distressing to read.) The court’s close look reveals that the Big Sky state emits more greenhouse gases per capita than all but five other states.

Second, Montana isn’t the only state that guarantees its citizens the right to a clean and healthy environment, so the court has provided an additional tool for advocates and judges in the five other states—to say nothing of the many nations—that enshrine the same rights in their own constitutions: Massachusetts, New York, Illinois, Pennsylvania, and Hawaii.

While the Montana first-of-it-kind decision is groundbreaking, the very recent decision by the Hawaii Supreme Court to allow a trial to proceed in Honolulu’s suit against several Big Oil companies is downright seismic. Although the city makes several claims, at bottom they are all based on the companies’ deceptive marketing practices. Honolulu alleges that the companies knew of the dangers of fossil fuels for decades and failed to warn the city of harms that have come to pass from climate change. And it wasn’t just passive avoidance. The Hawaii Supreme Court sets forth the claims that these producers of oil and gas took active steps to conceal the dangers. In about 1990, they turned from gathering information about climate change to deception: funding fringe scientists who questioned the growing consensus on the anthropogenic contribution to the emerging crisis; engaging in an aggressive public relations campaign to increase use of their products; and funding “think tanks, front groups, and dark money foundations pushing climate change denial.” For example, Exxon alone is alleged to have spent more than $30 million on such efforts.

The city claims to have suffered substantial harm from these wrongful acts, including damage and destruction of beaches; flooding; a warming ocean that has destroyed coral reefs; the loss of native species; and a loss of tax revenue (because of the effect of these changes on tourism). Honolulu will, of course, be forced to incur additional costs in the future for mitigation efforts.

In basing its claims on deceptive marketing and sales practices, Honolulu has hit upon a brilliant strategy—one torn from the strategy guide that has been successfully used to recover damages against Big Tobacco, the pharmaceutical companies that pushed opioid use, and gun sellers. Since all of these products have legal uses, smart lawyers turned their attention to the ways in which these industries promoted them in ways that led to devastating impacts. Tobacco companies denied that nicotine was addictive, and marketed their products to kids. Big Pharma similarly tried to shoot down growing evidence of the highly addictive nature of their products, to devastating impact.

Even gun manufacturers and sellers were called to account for marketing semi-automatic weapons to a group of young men who were particularly susceptible to a certain view of guns as powerful military ordnance. This win was particularly dramatic in light of a federal law that bans most lawsuits against gun sellers. But the statute has a narrow carveout for state laws that apply to the sellers’ conduct, and the Connecticut Supreme Court found that the state’s consumer protection and unfair trade practices law did apply—and that a lawsuit by the families of those massacred at Sandy Hook Elementary School could go forward. The defendants settled for $73 million before that trial, which promised to be disastrous to their public image, began. Who wants to argue in court that it was OK to sell a class of weapons used in the murder of 26 people, including 20 children?

Claims alleging deception and failure to warn of a product’s harmful consequences are effective. First, they appeal to the American narrative of individual responsibility. It’s one thing to choose to smoke, use opioids, or purchase and use gas and oil—it’s quite another to be duped into doing so by unscrupulous corporations. Second, they avoid confronting harder questions about the legitimate (or legal, at least, in the case of tobacco) use of the products, which can be difficult to win. This move is particularly crucial in climate change cases, because challenges to emissions themselves are open to the argument that these decisions should be made by regulators, not courts—and that it’s Congress and the EPA, not the individual states, that can assess the situation more broadly. The Hawaii Supreme Court’s decision makes repeated reference to that distinction, quoting favorably from the plaintiff’s complaint: “So long as Defendants start warning of their products’ climate impacts and stop spreading climate disinformation, they can sell as much fossil fuel as they wish without fear of incurring further liability.”

Failure to warn and objectionable marketing practices are the stuff of traditional tort law. Many products have unavoidably dangerous, yet sometimes valuable, uses. Opioids, like many other drugs, are textbook cases: They have vital, sometimes lifesaving applications, but because of the risks and harms they pose, alerting users of these possibilities is a must. Just as inappropriate use or overuse of these products can harm or destroy the body, so too can the overuse of fossil fuel degrade the ecosystem. Overuse is the accurate term, as there are many valuable applications for fossil fuels and their byproducts. For example, plastics have contributed to a revolution in the medical profession, igniting advances in prosthetics, flexible tubing, and sutures, among many other things. But it hardly needs saying that our long and promiscuous use of fossil fuels is a disaster.

What might come out of the Hawaii case, and others in the pipeline? (A case involving similar claims by the state of Minnesota is currently wending a tortured path through federal and state courts.) Most obviously, this new focus on warning and marketing claims has catalytic potential. Although it may be difficult to prove what cities and states would have done had they been warned, juries may conclude that at least some of the uses of oil and gas would have been curtailed sooner in favor of green energy alternatives had these governments been on to what the oil companies allegedly knew. (One particularly telling allegation in the Hawaii case is that the companies themselves were engaged in climate mitigation efforts while denying the effects of their products, such as raising offshore oil platforms to protect them against sea level rise.)

Also, as with any major litigation, the process itself can unearth important documents and statements by the defendants that push legislators to action. The tobacco litigation provides a dramatic example—during discovery, the plaintiffs turned up damning documents on what Big Tobacco knew about the dangers of their products. The result was the $206 billion Master Settlement Agreement between four of the largest tobacco companies and the 46 states that had sued them. The agreement compelled the companies to change their marketing practices related to children, to fund programs aimed at reducing tobacco use, and to repay states for the medical costs associated with tobacco-related illness. The companies also had to dissolve their research front groups. If enough cities and states were to band together, Big Oil could face similarly serious consequences.

Might these cases ever make it too expensive for the fossil fuel industry to keep on keeping on? Who knows? At least, though, they stand to contribute to public education and to offer serious financial accountability. This blizzard of domestic and global litigation may turn the political climate for the good, in what one hopes can be a change running parallel to a positive outcome for the real climate.