Americans love lawsuits. It’s almost a national pastime. So it shouldn’t be surprising that over the last few years a number of people have decided that the best way to deal with climate change is to sue it into oblivion.
One of the latest iterations of this strategy found itself in the Supreme Court (albeit for highly technical reasons involving federal jurisdiction ). In state court, the city of Baltimore, Maryland sued several major oil companies, alleging that they had failed to warn the public about the dangers of greenhouse gas emissions involved in the production and use of fossil fuels, and that emissions from the companies’ products had helped damage the city through sea level rise and increased extreme weather. The defendants subsequently sought to advance the case to federal court instead, and the U.S. Supreme Court decision issued this week bolsters that effort.
In the abstract, there is a surprisingly strong libertarian case  for this sort of thing. If pollution from your property causes damage to my property, that would seem to be a violation of my property rights. In the common-law legal tradition, that usually means I can sue you for damages already incurred and get a court order to prevent future damages.
When we move from the realm of abstraction to the real world, however, the case for climate litigation looks a lot less promising. For one thing, litigation tends to be a costly and time-consuming process, as evidenced by the fact that Baltimore filed three years ago and the courts are just now deciding whether the case should be heard at the state or federal level.
Cases like this also raise tricky issues involving causation. While it’s clear that greenhouse gas emissions do warm the atmosphere, the individual defendants are only responsible for a small fraction of total man-made emissions; assessing individual contribution to the damage in Baltimore—or anywhere else—is a tall order.
More broadly, there is also the point that knowledge of climate change may not have materially affected oil consumption. Oil and climate change are often likened to tobacco and lung cancer, but would anybody really buy less oil if every gas pump had a label on it that said, “WARNING: May cause climate change?” The answer is likely not, considering the lack of alternatives. Less than 1 percent  of vehicles on the road today are electric, and those with electric vehicles drive them less than half as much  as a combustion engine vehicle. Additionally, sustainable aviation fuels remain more  expensive than conventional jet fuel. The interactive effects of fossil fuel combustion and climate change are better understood now more than ever, but as Rep. Alexandria Ocasio-Cortez said of her large carbon footprint , she is just “living in the world as it is.”
When smokers look at warning labels on a package of cigarettes, they have a clear choice: they can smoke, or not. There is no requirement for them to smoke. When it comes to oil-related products, though, most people do not have alternatives. Just as Ocasio-Cortez can’t forgo fossil fuels, so too is the average American in a difficult position. Americans use oil products because they are oftentimes irreplaceable—getting kids to school, getting to work, hauling groceries and flying to visit far-away family all require fossil fuels.
Product alternatives returns us to the core legal question: should an oil company be held liable for how people use its product? Should a soda company be blamed because some of its customers get fat? Some may answer yes to these questions, but most would likely answer no, because they recognize that there is such a thing as personal accountability: each of us as individuals are responsible for our own actions. The exception to this is when information intentionally withheld would have influenced such action.
So the legal arguments against oil companies have a high bar: they must prove that the public had less understanding of climate change because of the actions of oil companies, and that people would have bought less oil products had they known. However, given the sheer dearth of oil alternatives, none of that is easy to prove. The plaintiffs may have even driven to the courthouse in a combustion engine vehicle.
Importantly, the Supreme Court’s decision did not settle questions of liability, which multiple court cases  are focused on. Expect the debate to remain, but understand that it may have little bearing on policy, so long as oil alternatives are high-cost and/or incomplete substitutes. Court cases will not settle the ultimate problem of climate change: how to supply as much energy on demand as we do today, without using greenhouse gases. The courts may dictate liability, but they can’t dictate outcomes.
Image credit: Delphotostock
- “highly technical reasons involving federal jurisdiction”: https://www.eenews.net/stories/1063732727?utm_medium=email&utm_source=eenews%3Aeepubs&utm_campaign=news_alert&ee_data=
- “surprisingly strong libertarian case”: https://www.rstreet.org/2016/11/09/the-anarchist-case-for-climate-action/
- “Less than 1 percent”: https://www.nytimes.com/interactive/2021/03/10/climate/electric-vehicle-fleet-turnover.html
- “less than half as much”: https://www.nber.org/papers/w28451
- “remain more”: https://theicct.org/sites/default/files/publications/Alternative_jet_fuels_cost_EU_20190320.pdf
- “said of her large carbon footprint”: https://twitter.com/AOC/status/1102021054363586561
- “multiple court cases”: https://www.law.nyu.edu/centers/state-impact/issues/climate-action/suits-against-oil-companies