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Why Climate Litigation Matters

Supreme Negligence

Disinformation Techniques: A Glossary

Amy Westervelt

On Monday this week the Supreme Court finally weighed in on whether it would take up the jurisdictional argument that oil companies are making in multiple climate liability suits. The companies have been arguing for the past five years that these cases, brought on behalf of municipalities and states, are asking state courts for judgements that would impact federal policy and thus belong in state court. Attorneys representing state and local arguments have argued that their cases—which claim that oil companies' delay tactics on climate increased the cost of adaptation and thus the companies are liable for a portion of those costs—were appropriately filed in state court. Every circuit court has agreed, as has the Department of Justice, and now the Supreme Court as well.

"The companies' history of climate, deception, and misinformation, coupled with their unchecked fossil fuel production promotion, and so on, it makes them liable for at least some of the costs that these communities face, so that these costs don't fall entirely on the taxpayers." — Marco Simons, EarthRights International, attorney representing Boulder and other Colorado municipalities against oil companies.

It's big news, but what will it mean for these cases? Some of them, including Boulder, which was the case invoked in the initial petition to the Supreme Court, will go back to arguing against other motion-to-dismiss arguments in state court. But others, starting with Hawaii, will move towards trial and that's a really big deal because it means some of these cases will get into the phase of litigation oil companies have been trying their hardest to avoid: discovery. In civil cases, the discovery phase is when companies will be asked to hand over documents and make their executives available for depositions. The evidence gathered during discovery in these cases could spell trouble for the oil company defendants in multiple other cases, including ongoing fraud suits in Massachusetts and Minnesota, a RICO, or racketeering, case filed on behalf of Puerto Rican municipalities, and even international cases given that the majority of these companies operate globally.

"At this point, we're optimistic about moving forward and securing justice for our clients, who have been facing significant harms and costs due to the climate crisis while the oil companies, of course, continue to profit from their deception and misinformation." —Marco Simons, EarthRights International

But of course, oil majors have not put all their eggs in the jurisdictional basket. As I've been writing about for years now, one of the key arguments they're making in these cases is a First Amendment argument. In broad strokes, the argument goes like this: anything they've ever said about climate was in the interest of shaping policy, which makes it political speech (or "petitioning speech" in legalese), and therefore protected. It was clear this was going to be the driving force of these cases when the oil company defendants appointed Chevron's attorney, Ted Boutrous with Gibson Dunn, as their spokesperson across the board. Boutrous is a renowned First Amendment attorney, and Gibson Dunn is the firm that brought and won the most famous corporate free speech in the country's history: Citizens United. And now, even as the broader jurisdictional argument seems to be dead in the water, oil companies have formulated another one: the First Amendment question in these cases is foundational, and is not something that state courts should be weighing in on.

That argument has already been briefed in multiple cases, and it's only a matter of time before it makes its way to the most pro-corporate Supreme Court this country has had in decades...maybe ever. In the meantime, cases will move forward, and it's possible that so many cases moving into discovery will prompt discussion of a tobacco-style settlement. But I wouldn't go counting those chickens just yet.

Litigation Documents

S2, Ep 6 | False Friends of the Court

S2, Ep4 | Taking Big Oil to Court

S1, Ep7 | Campaigns So Successful They’ve Landed In Court

S3, Ep11 | Supremely F*&cked

Climate Cases

SCOTUS Says No to Exxon, Now the Corporate Free Speech Fight Begins

Today on Hot Take, Amy and Mary sit down with Leah Litman, a law professor from our sister show - Strict Scrutiny, about SCOTUS aka the most hated reality TV show in America. They discuss Roe v Wade, WV v EPA, Ted Cruz’s slimy finances, and the Republican Attorneys General Association otherwise known as the villains you need to know about.

Montana Kids Just Won Their Landmark Climate Lawsuit. Here’s Why. 

False Friends of the Court, with Senator Whitehouse

California For The Win

Karen Savage

Dana Drugmand

In the U.S., the response to climate litigation is often “who cares when this Supreme Court is ultimately going to knock it back anyway?” And the answer is simple: discovery. Discovery is a term that describes the fact-finding phase of civil litigation. During the discovery phase, lawyers can access primary documents, depose current and former employees and executives, and generally get a whole bunch of information they couldn’t previously access. 

The oil companies have been fighting like hell to avoid this phase because it will undoubtedly produce ten more “Exxon Knew” series, if not more. It will provide evidence for all the other cases, too, not just in the U.S. but globally, where the industry doesn’t have Supreme Court justices ready to do their bidding. It’s true that it’s entirely possible that any climate case that gets to the U.S. Supreme Court will result in a pro-oil ruling. But not before massively increasing the risk of accountability for these companies along the way. Even the U.S. government might be forced to finally act if the public, armed with mountains of evidence that politicians have colluded with fossil fuel executives to sell their future, demands it.

And it’s important to remember that climate litigation does not begin or end with the U.S., nor does accountability for U.S. oil companies. It’s entirely possible that documents unearthed via litigation in one country can be used to hold a company accountable in one of the other 100 countries in which it operates. 

Given the importance of climate litigation today, and the fact that in its 2022 mitigation report the IPCC included litigation as a key mitigation tool for the first time ever, we keep tabs on these cases, both on the website and via multiple podcasts. 

S8, Ep9 | A Verdict

S5, Ep6 | A Verdict And a New Charge

S2, Ep1 | Ecocide

Today on Hot Take is all about resilience—and the limits thereof. Mary talks with two fellow southerners - Ko Bragg, Scalawag’s Race & Place Editor, and Amal Ahmed, Disaster Reporter at Southerly. They discuss the uneasiness of today's summers, the problems with individual responsibility and why "resilience" is almost never the right word.

Hot Take S3

S3, Ep12 | “Resistance” Over “Resilience”

Hot Take is a holistic, irreverent, honest look at the climate crisis and all the ways media and society are talking—and not talking—about it. Hosted by real-life friends Mary Annaïse Heglar and Amy Westervelt—an essayist and a journalist— Hot Take offers a unique perspective on the issue of climate change. With a breath of fresh humanity and humor, conversation moves swiftly from cackling about the bad week an oil company had, to speaking seriously and passionately about the unequal distribution of climate impacts and our own experiences of climate grief. And then washing it down with a round of dad jokes! Every week, we’ll connect you with the latest climate news and with the journalists and storytellers trying to make sense of this complex issue to help you see the world through climate-colored glasses. We ended production on Hot Take at the end of 2022, but you can still access episodes here, or 

A holistic, irreverent, honest look at the climate crisis and all the ways media and society are talking—and not talking—about it.

Hot Take

Transcription

S3, Ep1 | The Real F&#ckBois of Fossil Fuel

S3, Ep2 | Free Britney and Lock Up Exxon

Mea Culpas Are Great, But Climate Leaders Need to Model Real Accountability

S3, Ep3 | The Kids Are All Angry!

S3, Ep4 | A Total Moral Disaster

S3, Ep5 |  Down Uterus! Down Girl! with Rebecca Solnit

S3, Ep6 | Of Meat and Men, with Alicia Kennedy

S3, Ep7 | Death of Democracy with Adam Serwer

S3, Ep8 | A Republican Climate Plan?

Fossil Fuel Workers Are Dying Inhaling Gases — Despite U.S. Warnings to Big Oil

S3, Ep9 | How Many Oil Jobs Are There Really?

S3, Ep10 | Trans Rights Are Climate Justice

S3, Ep13 | Joe Manchin v The World

The Real Free Speech Threat

S3, Ep14 | Climate Behind Bars

S3, Ep15 | The Quiet Climate Emergency

S3, Ep16 | Devil in the IRA Details

S3, Ep17 | Amy and Mary Take a TV Break

S3, Ep18 | A FOX in the Newsroom

S3, Ep19 | Climate Colonialism 101

S3, Ep20 | Both Sides of the Mississippi

S3, Ep21 | Follow the Money, Eat the Rich

Personal Essay: I Am a Mad Scientist

S3, Ep22 | Ask a Scientist with NASA’s Dr. Kate Marvel

S3, Ep23 | Hurricane Season Heats Up

S3, Ep24 | Reclaiming Identity Politics, with Olufemi Taiwo

S3, Ep25 | Climate Candidates to Watch in the Midterms

Hot Take S2

S2, Ep1 | Media in Meltdown and Climate in Crisis, with Kendra Pierre-Louis

S2, Ep2 | Mary and Amy Watched “The Politician”

S2, Ep3 | Climate Bois Club, with Kate Aronoff

S2, Ep4 | Hate to Say We Told You So, with Brian Kahn

S2, Ep5 | Why Is It So Hard to Talk About Climate and Food? With David Tamarkin

S2, Ep6 | No Ordinary Pain: Katrina at 15 (with Story Collider)

S2, Ep7 | There’s No Climate Justice without Indigenous Sovereignty, with Rebecca Nagle

S2, Ep8 | Mary and Amy Watched “I May Destroy You”

S2, EP9 |  Around the Way, with Drew Costley

S2, Ep10 |  The Flyest Debate Ever, with Brian Kahn

S2, Ep11 | Political Instability =/ Planetary Instability, with Justin Worland

S2, Ep12 | All the Lives in the Balance, with Rachel Ramirez

S2, Ep13 | Mitch McConnell’s Cold, Dead Hands

S2, Ep14 | Making the Case, with Rihana Gunn-Wright

S2, Ep15 | 2020: The Shitshow

S2, Ep16 | No Better Time for Climate Reparations, with Tamara Toles O’Laughlin

S2, Ep17 | Blood for Oil, with Antonia Juhasz

S2, Ep18 | Two Sides to Every Story?  With Lewis Wallace

S2, Ep19 | The Greenwashing Olympics, with Emily Atkin and Brian Kahn

S2, Ep20 | The Ultimate Abolition

S2, Ep21 | Hot and Cold with Rev Yearwood and The Coolest Show

S2, Ep22 | April 20 Is #FUBPDay

S2, Ep23 | Moving Fast and Breaking Sh*t

The Reason Covid-19 and Climate Seem So Similar: Disinformation

S2, Ep24 | What Covid and Climate Have in Common: Science Denial, with ProPublica’s Caroline Chen

S2, Ep25 | Big Oil Had a Bad Month (Which Means We Had a Good One)

Mary Annaïse Heglar

Hot Take S1

S1, Ep1 | Fangirl v Fangirl

S1, Ep2 | 2016-2017 in Review: The Hangover

S1, Ep3 | 2018: The Wake-Up Call

S1, Ep4 | 2019: It’s Go Time

S1, Ep5 | Jan 2020: No Chill, with Meera Subramanian

S1, Ep6 | Feb 2020: More Fucking Greenwashing! With Maddie Stone

S1, Ep7 | March 2020: Pandemic, Primaries, and Not Asking Permission, with Sarah Miller

S1, Ep8 | March 22, 2020: Seeing Corona Through Climate-Colored Glasses, with David Wallace-Wells

S1, Ep9 | Disaster Denialism with Dr. Samantha Montano

S1, Ep10 | So This Is Purgatory, with Eric Holthaus

S1, Ep11 | Season 1 Finale: Rum O’Clock!

S3, Ep11 | Supremely F*&cked

About This Episode

Transcript

Next Up

S3, Ep12 | “Resistance” Over “Resilience”

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SCOTUS Says No to Exxon, Now the Corporate Free Speech Fight Begins