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Big Oil Can Expect More Climate Change Lawsuits

By George Khoury, Esq. on February 25, 2018 | Last updated on March 21, 2019

When litigants warn courts that ruling a certain way will result in the litigation floodgates opening, most probably aren't referring to actual, literal floods. However in recent months, more and more lawsuits have been filed against oil producers as a result of damage caused by climate change. Interestingly, it's now the plaintiffs warning the courts about floods.

As climate science continues to improve and courts continue to recognize the validity behind that client science, oil producers can likely expect to face lawsuit after lawsuit. The oil producers steadfastly claim that the alleged damages can't be traced to any one company, and that they're not responsible because they did not burn the oil they produced, but rather their customers did. However, these arguments could go up in a puff of smoke (like they did for big tobacco), particularly with the recent developments in attribution science.

Science Takes the Wheel

Steering these lawsuits is detection and attribution science, which is the practice of detecting and linking climate change events to actual causes. Detecting pollution, rising water levels, and other events, is aptly named detection science, and is often thought of as the natural companion to attribution science. Like the name suggests, attribution science attempts to attribute things like pollution, rising water levels, and rising temperatures, to the root causes.

Notably, attribution science has gotten a lot better recently. Researchers found that there are about 90 companies that are responsible for roughly half of the rise in temperature across the globe since 1880.

However, for a company to be held liable, not only will plaintiffs have to show that the company contributed to or caused climate change, but also that the climate change caused the harm. Thanks to science, these may be easier, but are not yet givens.

State Laws to the Rescue

While prior cases asserting similar theories brought under federal law have not been successful, the most recent round of cases filed by cities across California and in New York City, rely on state laws to hold the oil producers accountable. Also, the most recent round of lawsuits are more focused on particular players. Rather than going after almost every oil producer, these cases only focus on the major ones, likes Exxon, Chevron, and the other well known brands.

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