What Big Oil learned from the gun industry

Oil companies are seeking a liability shield. The gun lobby already has one — and it’s a nightmare for gun violence survivors and their families.

Illustration by Tess Abbot

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Big Oil is reportedly lobbying Congress to grant their industry legal protection against a growing number of lawsuits that, if successful, could make oil and gas companies pay billions of dollars for deceiving the public about the dangers of fossil fuels. In the most extreme scenario, Big Oil could follow the example of an industry that won a near-blanket immunity from Congress two decades ago — gun manufacturers.

The gun lobby achieved its top legislative priority in 2005 when Congress passed the federal Protection of Lawful Commerce in Arms Act (PLCAA). Signed by President George W. Bush, the law immunized gun manufacturers and sellers from lawsuits for injuries “resulting from the criminal or unlawful misuse” of a firearm.

At the time, more than 30 cities and individuals had filed lawsuits arguing that the companies’ negligent marketing, design, and distribution practices were endangering the public and leading to gun violence. Survivors, families of victims, and public officials sought to recover some of the costs they faced as a result of shootings — such as emergency and healthcare services and loss of income for families — and to compel gun makers to improve safety standards.

Instead of taking measures to help reduce gun violence, gun industry trade groups like the National Rifle Association intensely lobbied state legislatures and Congress for their own protection. They were successful: 32 states passed laws offering gun manufacturers some level of immunity against litigation before PLCAA was passed.

PLCAA made the gun industry a unique exception to many others — including tobacco, opioids, and automobile manufacturers — that have been forced through litigation to compensate governments and individuals harmed by their products and in some cases, revise their business practices. Similarly, many lawsuits brought against fossil fuel majors by state and local governments including California, Minnesota, and Puerto Rico aim to recover costs from climate damages, make the companies pay penalties for alleged misconduct, and cease deceptive business practices.

“The lawsuits against those industries are typically held up as a good thing because they led to safety improvements in their products,” said Betsy Grey, a torts and products liability law professor at Arizona State University who recently published an article in the Harvard Law School Journal on Legislation about the effects of granting liability immunity.

The gun industry’s success in thwarting litigation that could result in major penalties has inspired other companies to try to achieve the same goal. “Many other industries are looking for ways to get a free pass, and to opt out of liability exposure and the tort system for their negligence — insofar as they are negligent — they don’t even want to defend themselves in court,” said Timothy Lytton, a professor at Georgia State University’s Center for Law, Health and Society and expert in litigation against gun and other product manufacturers. “The fossil fuel industry is no exception.”

According to reporting from the Wall Street Journal, fossil fuel companies now asking Congress for protection “have learned from the mammoth lawsuits that clobbered tobacco companies and [want] to avoid the same fate.”

How a liability shield created barriers for gun violence survivors and victims’ families

In the years after PLCAA was passed, waves of lawsuits brought against gun manufacturers were dismissed — and some states with harsher liability protections even forced survivors and families of gun violence victims to pay massive fines to the companies they had tried to sue. “It really has had a chilling effect on lawsuits and has cut off individual access to the court system for these kinds of cases,” said Grey.

After their daughter was killed by a shooter at a Colorado movie theater in 2012, Sandy and Lonnie Phillips sued online gun retailer Lucky Gunner for selling thousands of rounds of ammunition, large-capacity magazines, and body armor to the murderer over the internet without a background check. Sandy Phillips, who became an advocate for stricter gun control laws in the wake of her daughter’s death, said her lawsuit was aimed entirely at forcing the retailer to change its business practices.

“We were really concerned — if this happened to us, how many other people could this happen to?” Phillips said.

The couple’s suit was dismissed under PLCAA — and in a now-repealed Colorado state law, they were forced to pay $200,000 in legal fees to the retailer, sending them into bankruptcy and costing them their home.

Shielding bad actors from liability is “a way of slapping the hands of every victim, and people die because of it — people continue to die and there’s no recourse,” Phillips said. “It’s a constitutional issue to have our right to be heard in court taken away from us automatically.”

Chris Kocher, who founded and directed the Everytown Survivor Network, a “nationwide community of survivors working together to end gun violence,” said pursuing accountability and justice was a hugely important part of healing for the families he worked with — but that most people were deterred from bringing a case at all after PLCAA was passed.

“That that pathway to accountability was denied to them under federal law was a huge source of emotional trauma to folks,” Kocher said.

While the majority of lawsuits against gun industry actors have been dismissed under federal or state immunity laws, some cases have been successfully brought under exceptions in PLCAA. The most common of those allows claims against companies for knowingly violating an existing state or federal statute relating to the sale or marketing of the product that caused harm.

One of those cases, brought by family members of victims of the Sandy Hook Elementary School shooting in Newtown, Connecticut, accused now-bankrupt firearms manufacturer Remington of violating the Connecticut Unfair Trade Practices Act in its marketing of the rifle used in the shooting. That lawsuit’s original dismissal under PLCAA was reversed by the Connecticut Supreme Court — but Remington and the families reached a $73 million settlement before the case could move to trial.

Erin Davis, senior counsel and director of litigation at Brady, an organization that works to stop gun violence, said that even exceptions to PLCAA can be used by the gun industry to delay justice, because they “leave the interpretation of these immunity statutes up to courts, and courts can certainly misinterpret how broad or narrow they are.”

Since 2021, a growing number of states have passed laws in accordance with PLCAA’s exceptions, expanding the rights of victims and public officials to take gun manufacturers and sellers to court. PLCAA has also faced constitutional challenges across the country, though none yet have been successful (one such outstanding challenge was just rejected last week).

Opioid lawsuits led to “huge change in the industry”

While no other industry has obtained the level of immunity the gun industry has, several others have secured partial protections from liability when it would have threatened their ability to provide critical services. Vaccine manufacturers were granted protections from lawsuits arising out of rare reactions to vaccines, and airline companies got limited immunity in the wake of the September 11, 2001 attacks. But in both those circumstances, funds were still made available for individuals to file a claim for compensation.

Immunity for gun manufacturers does not provide any path for alternative compensation — “it just deprives people of their right to bring a lawsuit,” said Lytton, of Georgia State University.

While PLCAA and state immunity laws shielded the gun industry from liability, successful litigation forced other industries to change their business practices and compensate those they harmed.

Like lawsuits against gun industry actors, cases against major pharmaceutical companies argued that the way those companies’ products were advertised and sold helped create a major risk to public safety. During the course of investigations and trials, more information about pharmaceutical companies’ deceptive marketing of opioids — and its role in creating an addiction crisis — was uncovered and made public. Now, after reaching nationwide settlements, those companies are being forced to limit their marketing and lobbying campaigns, stop rewarding the overprescription of opioids by doctors, and reform their distribution practices.

“There's been a huge change in the industry both in terms of attitude and in terms of action and preventative measures to reduce opioid addiction and the dangers of their products, even though they were being misused — which we have not seen in the firearms context,” Lytton said.

Davis, of the gun violence prevention organization Brady, said the courts are an essential mechanism to protect consumer and community safety and ensure that businesses or individuals are held accountable for putting people at risk. “Every major industry has been made safer as a result of impact litigation, and I think immunity shields and special protections given to certain industries really removes that check, which can be dangerous to communities across our country,” she said.

Now that many major corporations — especially fossil fuel companies — are operating under a federal administration that is working to unravel regulations, the civil justice system could be the only place for people to turn when they’re endangered by harmful products and subjected to deceptive marketing.

“I would say that as people watch the disintegration of the regulatory system, they should be especially wary of attempts by companies to take away their private rights — which everybody in the United States has — to bring lawsuits when they’re injured by the wrongdoing of a company,” Lytton said.

Risks to communities and democracy

Today, as when PLCAA passed in 2005, Republicans control all three branches of the federal government. Advocates are urging Democrats in Congress to unite against any potential liability shield for Big Oil, which could be snuck into essential legislation, and would likely need at least a few of their votes to pass.

Grey, of Arizona State University, said that Congress should remember that “a forum to publicly air your wrongs — your day in court — is thought of as fundamental to a democratic society.”

She also noted that civil liability claims are often handled at the state level — so Congress should consider the removal of access to those claims “as a federalism issue, infringing on states’ rights to protect the health and safety of their citizens.”

It’s unclear what liability protections for the fossil fuel industry could entail, should they pass. But for the rising number of victims of climate and extreme weather disasters — who could now also face far fewer resources from the federal government — the stakes are sky-high.

“It’s really important to these families that the companies that contributed to these disasters share a portion of the responsibility,” said Kocher, who is now the director of nationwide support and climate advocacy group Extreme Weather Survivors. “So that it’s not just falling on the families whose homes have burned down, who have lost their loved ones, who are already dealing with such unimaginable tragedy.”

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