IX.​ Legal Theories

Climate Homicide: Prosecuting Big Oil for Climate Deaths

March 2023

David Arkush, Donald Braman

Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide? Could they be convicted? In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale. It describes the doctrinal and social predicates of homicide prosecutions where corporate conduct endangers much or all of the public. Click here

New climate paper calls for charging big US oil firms with homicide.

March 2023

B. Kahn (The Guardian)

This article explores a new way of holding big oil companies accountable for climate change: trying them for homicide. Click here

New York Considers First-in-the-Nation Bill to Charge Fossil Fuel Companies for Climate Change Destruction

March 2023

M. Simoes (City Limits)

New York’s ‘Climate Change Super Fund’ bill would require the most prolific oil and gas producers to pay $3 billion dollars a year for the next 25 years for their share of total greenhouse gas emissions. The American Petroleum Institute (API), the largest U.S. trade association for the oil and natural gas industry, sent a statement to New York State legislators saying its members “strongly oppose this bill” and called for it to be removed from the state’s final budget. Click here

Senate poised to revive probe of Big Oil climate claims.

February 2023

C.Hiar (E&E News)

As the new position atop the Senate Budget Committee, Sen. Sheldon Whitehouse’s, is continuing to investigate Big Oil’s alleged efforts to mislead the public about the causes and consequences of global warming. Click here

Assessing ExxonMobil’s global warming projections.

January 2023

G. Supran, N. Oreskes, S. Rahmstorf

This report shows that in private and academic circles since the late 1970s and early 1980s, ExxonMobil predicted global warming correctly and skillfully. Using established statistical techniques, the authors found that 63 to 83% of the climate projections reported by ExxonMobil scientists were accurate in predicting subsequent global warming. Click here

CO2, Four, Six, Eight, How Do We Abate? Climate Change and Public Nuisance Law

2023

D. Rose

A paper my David Rose, a 2023 J.D. Candidate at the University of Oregon School of Law, that provides background on nuisance law and how the courts distinguish between damages and the equitable remedy of abatement. Click here

Jurisdiction delays lawsuits against Big Oil: the Biden administration can help

December 2022

D. Merner

Delta Merner, Ph.D., is the lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists Nationwide. In this paper, he discussed how fssil fuel companies are using deliberate delay tactics to keep cases out of state courts and what the administration should and could do about it. Click here

Liability for Public Deception: Linking Fossil Fuel Disinformation to Climate Damages

December 2022

J. Wetz, B. Franta

The authors examine how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. Their key finding is that courts may infer public reliance on false and misleading statements using multiple lines of evidence, including information about the scope and magnitude of the deceptive communications, defendants’ internal assessments of the efficacy of their disinformation campaigns, acknowledgements of intended reliance made by defendants, expert testimony on the effects of disinformation, public polling data, and more. Click here

Research Priorities for Climate Litigation

November 2022

B. Franta, D. Merner, J. Wentz, et al

This article characterizes key research gaps and opportunities for scientists across disciplines to do work that informs the rapidly growing number of climate lawsuits cases worldwide. It focuses on research that can be used to establish government and corporate responsibility for GHG emissions and climate change-related damages. Click here

Causality and the fate of climate litigation: The role of the social superstructure narrative

June 2022

F. Otto, et al

In this article, the authors step back from a case-specific analysis in this article and identify the social context in which law and science operate and intersect. They assert that without a general understanding of the urgency of climate change and the scientifically proven fact that climate change impacts the present, and that it is possible to attribute individual losses to human-caused climate change, the fate and future of climate litigation focusing on losses and damages will continue to encounter major obstacles in courts. Click here

Tortious claims and climate change: Where are we now?

January 2022

A. Chaize, I. Thain, J. Medlong

This is an examination at the 2022 judgement of the Court of Appeal of New Zealand in Smith v Fonterra in which the court considered whether to strike out a cause of action based on a novel tortious duty of care to “cease contributing to damage to the climate system.” Click here

Oil & Gas Lobbying, 2022

2022

Open Secrets

This article lists the amount of money Big Oil and Gas companies spent on lobbying in 2022. Click here

Climate Change and the Clean Air Act of 1970. Part 1: The Scientific Basis.

2022

N. Oreskes, et al

This Article reviews this history and its role in the passage of the Clean Air Act of 1970. Click here

Climate change attribution and legal contexts: evidence and the role of storylines

August 2021

E. Lloyd, T. Shepherd

The study of this article finds that while climate change is recognized as a significant threat to the industry, innovation efforts are hindered by various barriers such as lack of financial resources, limited knowledge and skills, and a lack of industry-wide collaboration. The article concludes by recommending the need for a collaborative approach to climate change adaptation in the industry, as well as increased support from government and research organizations to overcome the barriers to innovation. Click here

Filling the evidentiary gap in climate litigation

June 2021

F. Otto, et al

In this paper the authors discuss the challenges to scientifically demonstrating causation to climate change and the role of climate-science in past litigation and the evidence needed. Click here

The Law and Science of Climate Change Attribution

2020

M. Burger, J. Wentz, R. Horton

This Article describes how climate change detection and attribution science is now and may in the future be used in policymaking and litigation. We focus primarily on litigation, as this is one key context in which attribution science is influencing the legal discourse on “responsibility” for climate change. Click here

Attributable damage liability in a non-linear climate

September 2018

F. Otto, L. Harrington

The authors examine current research efforts linking the observed impacts of climate-related events to human influences. Click here

12 State Amicus Brief. Exxon Mobile Corp v Attorney General of New York, et.

June 2017

Brief in Support of Motion for Leave to File Brief as Amici Curiae in Opposition to Defendants’ Renewed Motions to Dismiss Plaintiff’s First Amended Complaint Exxon Mobile’s brief in support of Motion for Leave. Click here

Exxon Mobile Brief. State of New York v Exxon Mobil

June 2017

Exxon Mobil’s Opposition to the Attorney General’s Motion to Quash. Click here

Scientists, Legal Scholars Brief State Prosecutors on Fossil Fuel Companies’ Climate Accountability

May 2016

P. Frumhoff

Peter Frumhoff speaks out on the evidence and argument for fossil industry climate accountability in public forums across the US. Click here

The climate responsibilities of industrial carbon producers

July 2015

N. Oreskes, R. Heede, P. Frumhoff

Responsibility for climate change lies at the heart of societal debate over actions to address it. But climate responsibilities can be attributed in other ways as well. In this article, the authors explore the conceptual territory of responsibility. Click here

The Climate Deception Dossiers

July 2015

K. Mulvey, S. Shulman

In 1015, U.S. Senator James Inhofe of Oklahoma, who was chair of the U.S. Senate Committee on Environment and Public Works, had famously and repeatedly called climate change “a hoax.” The hoax was the decades’ long campaign by a handful of the world’s largest fossil fuel companies-such as Chevron, ConocoPhillips, ExxonMobil, and Peabody Energy-to deceive the American public by distorting the realities and risks of climate change, sometimes acting directly and sometimes acting indirectly through trade associations and front groups. This report presents seven “deception dossiers”-collections containing some 85 internal company and trade association documents that have either been leaked to the public, come to light through lawsuits, or been disclosed through Freedom of Information Act (FOIA) requests. Click here

Climate Change and the Law

Chapter 17: Climate change in the courts: jurisdiction and common law litigation

2013

Lewis & Clark Law School

(with and excerpt by M. Woods)

This book comprehensively assesses the law and science of climate change, as well as the policy choices for responding to this global problem. Chapter 17 includes a section includes an excerpt from a law review article by Professor Mary Wood, who has argued for an expansion of the public trust doctrine to encompass climate change. Click here