The growing wave of lawsuits against Big Oil

David Tong, campaign manager at Oil Change International, discusses new findings about the growing number of climate lawsuits against fossil fuel producers worldwide.

Illustration by Tess Abbot

In 2022, oil companies submitted a plea to the U.S. Supreme Court that warned of the “massive monetary liability” U.S. climate lawsuits could impose on the fossil fuel industry. Since then, Big Oil has deployed a range of unusual tactics designed to derail legal efforts to hold them accountable for their contributions to the climate crisis.

Those reactions are just one sign that climate lawsuits are a mounting threat to oil and gas majors across the globe. The number of climate cases against Big Oil each year has nearly tripled since the Paris Agreement was reached in 2015 — an indication that “Organizations and communities around the world are increasingly turning to legal action to hold these fossil fuel companies accountable,” a new analysis found.

The report, published last week by Oil Change International and Zero Carbon Analytics, used data from Columbia University’s Sabin Center for Climate Change Law to examine 86 cases filed against major fossil fuel producers by states and municipalities, Indigenous tribes, advocacy groups, youth, government organizations, and individuals. The authors identify three of the biggest and fastest-growing categories of these lawsuits: climate damages cases seeking compensation for the consequences of climate change, misleading advertising cases seeking to hold the companies accountable for false climate and environmental marketing claims, and emissions reduction cases, which target fossil fuel majors’ failure to comply with the Paris Agreement. Newer legal theories against fossil fuel companies are also making headway — including racketeering and criminal claims.

A combination of likely factors was behind the increase, including the development of attribution science that can link climate-worsened extreme weather events to specific companies’ emissions, increased scrutiny of fossil fuel majors’ climate marketing campaigns and simultaneously expanding oil and gas operations, and the worsening effects and rising costs of the climate crisis. Not documented in the report — but another likely factor — is the ever-compounding evidence of the industry’s campaigns to deceive the public, promote unproven technologies as climate solutions, and misinform consumers about their commitments to reducing emissions. 

I spoke with David Tong, campaign manager at Oil Change International and a contributor to the report, about the expanding landscape of climate litigation worldwide.

Our interview, edited for length and clarity, is below.

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There has been a lot of talk lately about the relevance of tackling climate disinformation in the fight to address climate change. Your report suggests that at least when it comes to courts, it's highly relevant. What are your thoughts?

Disinformation is a tool that the oil and gas industry has long used to preserve its social license, preserve its access to capital, and preserve its access to government decision makers. These lawsuits show ways to challenge this disinformation. It’s a particularly significant thing for a company to not only negligently or recklessly misinform the public around the nature of the climate crisis, but to do so deliberately, knowing that what they’re saying is untrue. We know that major oil and gas companies deliberately chose, as shown by their internal documents, to fund climate change denial while internally admitting that burning their products would cause the climate crisis. That could provide [ground for] liability across the board for all kinds of future litigation.

It seems like the lawsuits against fossil fuel companies for misleading advertising in the UK have been particularly successful so far in getting companies like BP to actually withdraw advertising campaigns. Consumer fraud and false advertising cases are advancing in the US — what do you think their outcomes in other countries say about their chances here, and what’s the importance of these cases?

It’s hard to draw a direct link between the successes you see in one jurisdiction and the likelihood of success in another because of the huge differences in case law and statute in the different jurisdictions. However, the U.K. and the U.S. are common law jurisdictions with an extensive shared legal heritage, where precedence from one will be persuasive on important decisions in the other. The successes on misleading advertising cases in the U.K. indicate that there’s definitely an opportunity and a strong chance that, subject to differences in domestic legislation, U.S. courts are likely to follow. 

We know that these companies are heavily invested in maintaining their social license by arguing that they are somehow part of the energy transition, even as the vast majority of their [capital expenditures] goes to continued oil and gas expansion. Our assessment, along with many other independent assessments, confirm that none of the major oil and gas producing companies have aligned their business models with the Paris Agreement. A risk to their ability to advertise [these claims] presents a significant risk to their ongoing social license. 

Of the ongoing cases against Big Oil you listed in your report, which do you think are most important to watch in the next year?

There’s been the landmark success in the Milieudefensie and Shell case in the Netherlands, which is super significant in showing that there [could be] a mandatory obligation on these companies to align their policy with what is needed for the energy transition. That case has been appealed, and the outcome of the appeal is of course going to be very significant.

In the U.S., the Honolulu case — in June this year, the Supreme Court asked the Solicitor General for an opinion on whether a case seeking to hold oil and gas companies accountable for climate damages could [be heard under state law]. The final decision on whether this can go ahead is pending, but the outcome of that is very significant for impacts on what other cases in the U.S. can be brought against these companies. Having one success on the scale of the Honolulu case would be particularly significant.

What do you see as the biggest impediment to plaintiff success in climate litigation against fossil fuel companies?

We are talking about the biggest of the international oil and gas companies — incredibly well-resourced companies with access to huge pools of legal advisors, both in-house and external counsel, with offices across multiple jurisdictions, with long experience in litigation. So it is a huge challenge for an individual plaintiff — particularly an individual person or a small community group, or even a municipality, to match these companies in court. To respond to all the pre-trial applications these companies could file. To defend against strikeout applications, to provide discovery, all of that is a huge challenge. 

Though not a challenge necessarily for plaintiffs directly but for [anyone] criticizing the companies, we’ve seen that at the same time as there’s an increasing wave of litigation against oil and gas companies, more and more strategic lawsuits against public participation — SLAPP suits — are being filed by oil and gas producers. This has a chilling effect on public discourse and public criticism of these companies. Organizations can be silenced by threats of legal action that then discourages them from even getting to the point where they could consider becoming plaintiffs. Seeing the novel uses of the EU’s anti-SLAPP directive to protect public discourse across jurisdictions, even in the United States — for example, Greenpeace has threatened to sue Energy Transfer in the Netherlands for damages related to Energy Transfer’s case against them [for organizing against] the Dakota Access pipeline in North Dakota — could be incredibly significant depending on how that develops. [Tong is on the board of directors at Greenpeace International.]

[Additional note: Rep. Jamie Raskin introduced federal anti-SLAPP legislation in the U.S. in 2022. He recently told ExxonKnews that he would reintroduce that bill in the next Congress.]

Besides governments and the fossil fuel industry, what other sorts of defendants are you seeing more of in this space, and do you have predictions as to who might be next?

There are a couple of areas — and this isn’t exhaustive because our focus is on the producers — but there are other areas where we can expect more litigation. We talk about these as the enablers of these companies, so lawsuits against municipal authorities or governments that wrongly grant permits to these companies are already underway and will continue. Lawsuits against insurers, financiers, have already begun — for example against Total financiers in France — we can expect that area to grow as well. The other area that we expect to grow significantly is litigation against fossil fuel company directors, seeking personal liability. It is generally challenging to pierce the corporate veil and get personal liability against a company’s directors as individual people, but there are a number of scenarios where it could be alleged that these people are failing to comply with their directors’ duties. 

You identified two newer criminal cases that have been brought against oil companies, which include claims like crimes against humanity and involuntary manslaughter. How are the potential outcomes of these newer claims different, and do you think we can expect to see more of these cases or more trends like these?

We can expect to see more new avenues seeking criminal liability for oil and gas and coal producing companies and their directors. So far, on the pure criminal cases, there are two examples we analyzed. One is an allegation of crimes against humanity brought by two youth organizations to the International Criminal Court [against BP senior executives]. This was dismissed, but it is likely that we will see ongoing advocacy for crimes against humanity charges to be brought against oil and gas producers. This was led by youth organizations, and if we look at the International Court of Justice, the call for an advisory opinion [on the obligations of States with respect to climate change], before it was picked up by the government of Vanuatu, was a call brought by Pacific youth organizations. So we have one example where a youth organization’s call was adopted by a government and then has led to a successful call for an advisory opinion from one of the two international courts. That could show a possible pathway in the future for liability in the ICC, if we see continued calls from youth organizations and members of the public that could be picked up by states and brought under the Rome Statute. 

What was historic and has a more immediate prospect of success is the criminal case brought by three organizations and eight individual people seeking a French prosecutor to investigate Total Energies’ directors and shareholders. This is an allegation of involuntary manslaughter, endangering peoples’ lives, neglecting to address a disaster, and damaging biodiversity. Each of these [claims] are punishable by a small term of imprisonment or a fine. If successful, this could then [spur other] criminal liability claims elsewhere in Europe. It would be more challenging to bring that across from a civil law jurisdiction like France to a common law jurisdiction like the U.S. or the U.K. or Australia, but symbolically, successfully bringing one of the biggest oil and gas producers’ directors and shareholders to account criminally would probably have a huge impact on what others do. 

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