Climate Change: Privatizing the Benefit and Socializing the Risk

The Union of Concerned Scientists (UCS) have an excellent story in their spring 2025 edition on how the fossil fuel industry, like the tobacco industry and big pharma, has gaslighted the country for decades. The DOJ was in London earlier in the year to argue for the extradition of a private investigator for hacking into websites, including the UCS to thwart litigation against the corporation by claiming there was a conspiracy against ExxonMobil. No conspiracy needed; it’s right out in the open! Decades of Deceit tells the tale. www.ucs.org/sp250-decades-deceit

At one of the few “big firm” interviews I had in Phoenix when I became a lawyer, the interviewer took me into a room that was a good-sized office with shelving floor to ceiling on all four walls and a couple of big conference tables in the middle. He said all the documents that lined those walls, and it was all four, were from one case that had been going on for years between Exxon and Mobil. It would be my job to know every document in there, where it was, and be able to retrieve it in a minute when asked by a lawyer.

I looked at him side-eye in astonishment and said, “Are you joking?”

He assured me he was not. I said, “First, whoever does this job, would have to be insane. And second, who gives a shit about a lawsuit between Exxon and Mobil? They are the same rotten company.” I laughed a few years later when they did in fact become ExxonMobil.

Edward Teller warned fossil fuel executives about carbon dioxide in 1959 and predicted exactly what we are seeing – ice cap melt and coastal cities being submerged. UCS says, “The American Petroleum Institute commissioned a study which reported significant temperature increase by 2000 and melting ice caps, rising sea levels, warming oceans, and increase in photosynthesis. This was reported to World Petroleum Congress in the early 1970s. In 2000, scientists found these predictions off by only .36 ppm. By the end of the 1970s, companies were discussing this internally and in 1980 they said a choice had to be made.” Since then, fossil fuel companies have engaged in a campaign of obfuscation, deceit, fraud, and bribery to keep their pockets full and our world burning.

“Today we know global temperatures are rising as they have been measured for centuries. Severe weather is more severe and more frequent because it has been counted and measured. i.e. a $23 billion dollar + disaster every year for the last 5 years compared to 3.3 such events in the 10 years of the 1980s. The UN also compared what is with what would have been if we had taken action earlier.”

Rather than hold the fossil fuel companies accountable, we have privatized the benefit (they reap the profits) and socialized the risk (the public pays for the damage). 2024 was the costliest year so far with $229 billion in damages and 2,000 people killed. Three-fourths of that was in the U.S. The 2024 disasters will cost Americans $500 billion ultimately according to AccuWeather. They report 24 disasters costing more than $1 billon including 2 winter storms, wildfire, 4 cyclones, and 17 severe storms. That isn’t counting the heat waves that we are familiar with here in AZ. They cost not only lives but damage to property and loss of business. There is discussion of starting to grade and name the heat waves like we do tornadoes and fires. In 2023, there were 28 disaster events.

Litigation against the companies has become prevalent worldwide with up to 230 cases filed up to 2023. In Saúl Luciano Lliuya v. RWE, a Peruvian farmer sued one of Germany’s largest energy companies for contributing to glacial melt that flooded his village. He lost because he could not reach the legal threshold, but the court affirmed that climate cases could be heard in tort in civil actions. The court also acknowledged that REW’s contribution to global CO2 emissions while only .4% was legally meaningful and a company can be held responsible for their contribution to the problem. Importantly the court held that RWE knew the problem and cannot claim ignorance. Climate change is foreseeable – an important issue in the law. A government permit doesn’t help you and since the harm is global, citizens from around the world can sue you.

In 2020 Senior Women for Climate Protection Switzerland took the Swiss government to the European Court of Human Rights because their health is threatened by heat waves made worse by the climate crisis. (KlimaSeniorinnen v Switzerland) Under the ECHR treaty, they sued for violation of their right to life and health, a fair trial, and an effective remedy.

On April 9, 2024, the European Court found a violation of the right to private and family life and access to court. They held that the right to private and family life includes the negative effects of climate change on our lives and health. Under that treaty, countries have positive obligations (what we call affirmative action) and must actually do something.

140 “climate washing” or “green washing” cases are pending. Green washing is a technique of pretending to do something but just creating faux community groups and phony ad campaigns. Completed cases on these grounds have a 70% chance of winning.

Some 30 cases are trying to hold the companies financially responsible. Shareholders are starting to sue directors and officers for failing to tell the truth about the risk of investments e.g. in a coal plant. These suits are called “transition risk.” Milieudefensie et al. v. Royal Dutch Shell is the landmark case on “corporate framework” i.e. are the policies of the company really in line with the climate goals they claim to be reaching for. That case was filed in 2019. Friends of the Earth sued Shell for its contributions to climate change that violate its duty of care under Dutch law and human rights obligations. The plaintiffs seek a ruling from the court that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Climate Agreement.

On November 12, 2024, the Court of Appeal in The Hague issued its judgment on the appeal and agreed that Shell has a legal duty of care to curb dangerous climate change. But the court would not impose a specific emission reduction target on Shell because they claim the science is not there to prove how it could be done. In February 2025, Milieudefensie announced that it would appeal the decision to the Supreme Court of the Netherlands, requesting a specific rate of emission reduction.

A hearing was held in June at the Inter-American Court of Human Rights on the indigenous rights of those in the Amazon, and Colombia and Chile are awaiting an advisory opinion from IACHR about countries responsibility for climate change.

The US has more than 1,500 climate related lawsuits. Most of them have been dismissed; none have reached a decision. Causes of action have been based on federal and state statutes, federal and state constitutions, international treaties and human rights law, and common law.

The Held v. Montana case has gotten the furthest with the Montana Supreme Court in December 2024 striking down the state statute on state constitutional grounds that prohibited regulators from considering emissions in making decisions – which seems like a pretty stupid statute.

Maybe the longest case has been the one filed by Our Children’s Trust in 2015, Juliana v. U.S. out of Oregon. They are suing for children under the Fifth Amendment that the failure to act is a violation of due process and the children’s right to life, liberty, and property now and in the future. In March 2025 the U.S. Supreme Court dismissed the case.

One-fourth of Americans live in an area where a lawsuit against a fossil fuel company is pending. UCS has a Science Hub for Climate Litigation to assist attorneys and community groups. https://lawclimateatlas.org/resources/climate-change-litigation-in-the-us/

Nineteen Republican attorney generals went to the U.S. Supreme Court to block lawsuits against fossil fuel companies brought in five blue states but were rejected allowing the cases to go forward. Shell and Sunoco sued in Hawaii to stop a suit but were also rebuffed. The Supreme Courts in Massachusetts and Colorado have also rejected fossil fuel companies requests to dismiss suits and is forcing them to trial.

The current administration has come solidly down on the side of fossil fuels and sued Hawaii and Michigan to prohibit them from charging companies with costs. DOJ has also sued NY and Vermont because they are asking companies to pay into their state super-funds for clean-up.

Fossil fuels companies are trying to get legislation in Congress like the gun lobby did that would prohibit suits. That ridiculous law just torpedoed the lawsuit by Mexico against the gun manufacturers for flooding Mexico and cartels with heavy duty weapons.

Communities on the Gulf Coast have been in the forefront of these fights for a long time, especially Black communities where the plants are located. They are focusing on the financers and insurers of these huge projects. Twenty new LPG operations are planned though the U.S. is already the number one gas producer and this gas would be for export. Lawsuits and shareholder resolutions can be one tool. People are losing their home insurance due to the disasters caused by climate change (my cabin insurance company just declined after June 30 when this policy ends), so insurance companies should not be insuring the company causing the problem.

Make sure your portfolio or your pension fund (should you be lucky enough to have either) does not invest in fossil fuels. If you do have stock in one, start a shareholder movement. Join the Sierra Club or the Union of Concerned Scientists. Donate to Earth Justice (because the earth needs a good lawyer). Recycle, reuse, compost. Get solar if you don’t already have it. My electric bill for the last two months has been $36 a month even when the heat started.