The arc of justice finally bends against Big Oil

In an historic ruling that could change the trajectory of a rapidly heating planet, a court of law with binding jurisdiction over most of Europe has ruled that governments can be held liable for inadequate responses to climate change.

The European Court of Human Rights determined that rising temperatures in Switzerland caused direct and tangible health consequences among Swiss citizens, and that governments failing to take adequate steps to mitigate and reduce greenhouse gas emissions could owe damages to people hurt by their inaction.

So what, in practical terms, does this mean for a planet that is literally burning in an increasing number of locations?

Europe could take climate cases in a new direction

The ECHR ruling is unprecedented in several respects, beginning with its reliance on principles of human rights.

The Court ruled that governments failing to do enough to address climate change were violating the European Convention on Human Rights, which holds as its first tenet that, “Everyone’s right to life shall be protected by law.” By failing to meet its own climate goals, the court held, the Swiss government impaired citizens’ fundamental rights to life.

The plaintiffs themselves were also unique. In climate cases pending around the world, including in the United States, the vast majority of plaintiffs are young people worried about how they will survive on a sweltering planet with rapidly disappearing habitats and resources.

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The ECHR case, in contrast, was brought by elderly plaintiffs, most of whom were women in their 70s who proved that their age and gender make them particularly vulnerable to health risks linked to climate change. Heatwaves, in particular, can be deadly for the elderly as excessive heat triggers a strained cardiovascular response. Cognizant of their own time limitations, these women sued to benefit the next generation. One plaintiff told the BBC, “We know statistically that in 10 years we will be gone. So whatever we do now, we are not doing for ourselves, but for the sake of our children and our children's children.”

Because there is no avenue for appeal, the ECHR ruling will directly influence energy policy throughout the industrialized economies of Europe. Although it falls to Switzerland to comply with the ruling, its precedent is legally binding on all 46 member states, including Germany, the U.K., France and Italy — all fuel-burning heavy hitters.

Climate challenges in the U.S.

The European Court ruled that Switzerland’s efforts to reduce carbon emissions had been “woefully inadequate.” Although the ruling isn’t binding on U.S. courts, the domestic fossil fuel industry will be directly affected by it, since the U.S. has recently become the biggest supplier of crude oil to the European Union.

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Climate litigants in the U.S. follow a different strategy. State and local governments are now suing fossil fuel companies and the American Petroleum Institute for damages caused by climate change — astronomical damages that inevitably fall to states, cities and towns that can’t afford to pay for them.

These climate cases name private fossil fuel companies as defendants, seeking to hold responsible various for-profit companies, including BP, Chevron, ConocoPhillips, ExxonMobil and Shell, for increasing carbon dioxide and methane emissions caused by their products.

Big Oil’s campaign of deception

Legal claims and allegations pending in the U.S. focus largely on Big Oil’s deceptive practices. Like the tobacco disinformation cases from the 1990s, these cases allege fraud, nuisance, conspiracy and negligence arising from the industry’s long-standing public disinformation campaigns.

Congress has conducted numerous investigations into Big Oil’s pattern of deception. Despite conclusive evidence that oil executives have long known the causal connection between fossil fuels and climate change, industry executives have consistently lied about it to protect their profits.

Nearly 10 years ago, Democratic members of Congress addressed a report by the Union of Concerned Scientists concluding that “there was a coordinated campaign of deception” on climate science by ExxonMobil, Chevron, ConocoPhillips, BP, Shell, Peabody Energy and other members of the fossil fuel industry.

Big Oil’s targeted acts of deception over a decades-long campaign included “forged letters to Congress,” secret funding of allegedly independent but industry-controlled scientists, creating “fake grassroots organizations” to influence policy, and multiple, ongoing, and in-depth “efforts to deliberately manufacture uncertainty about climate science.”

Evidence of the industry’s deceptive practices could be pivotal in cases brought by state and local governments paying a staggering tab for intensifying storms, flooding, crop-destroying droughts, extreme heat events and, for states and towns on major bodies of water, coastal erosion.

In the meantime, the fossil fuel industry continues to profit outrageously from extracting, distributing and marketing dangerous products known to increase Earth’s already feverish temperature: March was the 10th month in a row to set a new monthly global heat record, both on land and in the oceans, as global reliance on coal — the dirtiest fossil fuel of all — continues to climb.

Landmark climate cases in Montana, Hawaii

The ECHR decision was the first to rule that governments are obligated under human rights laws to address climate change, but it won’t be the last. Cases pending in Montana and Hawaii also allege damages from unmet climate obligations by their respective state governments.

Last August, 16 young plaintiffs scored an unprecedented victory in Montana. They argued that the state violated a state constitutional provision that guarantees Montana citizens a healthy environment, and Judge Kathy Seeley agreed. She ruled that permitting coal, oil and gas production worsened the climate crisis, in violation of the “healthy environment” guarantees found in the Montana constitution.

In result, state regulators issuing permits for fossil fuel developments must now consider the effects of greenhouse gas emissions as part of their overall analysis of whether to grant or deny the permit. After the state appealed the maverick ruling, Montana’s Supreme Court, in a 5-2 decision, denied the governor’s request to block the ruling pending appeal.

In Hawaii, another pending climate case involves 14 youths. Plaintiffs in Hawaii allege that the state’s transportation department, by funding highway projects that increase fuel consumption and greenhouse gas emissions, violated a constitutional duty to protect the environment.

After the state challenged plaintiffs’ standing, claiming they could not show particularized harm because climate damages are already “baked in,” the judge ruled that climate damages to plaintiffs “are not hypothetical,” and allowed the case to proceed.

When the state asked Hawaii’s legislators for more than $2 million to hire outside counsel to fight the case, one state legislator told Hawaii Public Radio that instead of “spending the millions of dollars we’re spending on some hotshot law firm,” Hawaii should apply that money toward emissions reductions instead.

The case was scheduled for trial this summer, but in February, the fossil fuel defendants petitioned the U.S. Supreme Court, claiming that federal law precludes damages claims against them.

Take heart, then take action

Climate activists should be uplifted and encouraged by the ECHR decision, particularly as its effects begin to ripple through the fossil fuel industry, industrialized economies and reluctant courts.

It won’t change the prognosis or the immediate future — today’s youth throughout the world will still live through the worst effects of climate destruction, even though they had nothing to do with the policies that caused it.

It’s the same lament heard from emerging economies in Asia and Africa. Struggling countries and coastal populations who had nothing to do with industrialization over the past 150 years are now paying the steepest price through their own rapidly disappearing habitats.

But one major, outcome-determinative difference between these two rightfully aggrieved populations remains: the right to vote.

As enraging as it is for young Americans to hear oil-financed politicians deny climate change (“Drill baby, drill!”), we could fund the transition to clean energy — including an upgraded, nationwide grid of sufficient capacity — if every young adult simply voted.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Follow her on Substack.