US Climate Litigation against Private Companies
Much of US climate change litigation involves private actors (typically individuals or non-governmental organizations) suing the government for failure to address the climate crisis. Another area of climate litigation in the US involves lawsuits against private entities (like corporations) who are directly responsible for greenhouse gas emissions and climate harms. These “private law” claims usually originate in tort, most commonly the tort of public nuisance. So far, these suits have been brought by individuals and NGO’s, but also by cities and states with greater financial resources. Public bodies like cities and states are pursuing these suits as an attempt to recoup their massive financial losses for present and future climate change events, as well as to help with climate change adaptation.
Public nuisance derives from the common law and is not defined in any federal statute in the US (although some states have codified it in legislation).[1] The general test for public nuisance is an “unreasonable interference with a right common to the general public,”[2] although the courts have some flexibility in applying this test. Public nuisance claims currently make up “the largest source of climate-relevant private litigation today” in the US.[3]
The common law is an advantageous avenue to pursue climate change claims because it can fill in the gaps where certain US states have not implemented sufficiently stringent climate laws.[4] That being said, this avenue is problematic in that it is a short-term remedy with numerous obstacles (as outlined below), and does not provide a long-term solution to the climate crisis.[5]
Plaintiffs bringing forward climate change public nuisance claims face several major hurdles:
A. Standing – plaintiffs need to show that they have a concrete interest in the litigation that is in some way different from how the public at large is affected.[6] This favours property owners, because they can more easily show that their property is directly affected, and states in these kinds of claims against private entities. Individuals and public interest organizations who do not own property may find it difficult to get standing on climate change-related claims because their claims are less direct and more speculative.[7]
B. Displacement – common law claims may fail (in other words, be “displaced”) where legislation on the subject matter exists. For example, if a federal agency has the authority to regulate greenhouse gas emissions under a federal statute, a public nuisance claim may fail on the basis that Congress has granted the federal agency the power to regulate this subject matter, and effectively taken this competence away from the courts. If a court rules this way (especially the US Supreme Court), this will close the door on future similar claims.
C. Jurisdiction – common law claims are frequently wrapped up in disputes around whether the federal or state court has jurisdiction to hear the case. This is because federal and state laws are distinct from each other. The US Supreme Court has ruled that federal common law claims against private entities have been displaced by federal environmental statutes like the Clean Air Act.[8] However, this does not automatically mean that it is also excluded under state law. Where a state has not enacted legislation on the specific matter (like greenhouse gases), a public nuisance claim may exist under state law.
This forces plaintiffs to go through state courts to get their public nuisance cases heard under state common law.[9] Defendants typically argue that the case should be decided under federal law since that is more favourable for them, and file motions for the case to be moved to federal court. This leads to major delays in getting a case heard on its merits. The US Supreme Court recently declined a motion by oil companies to move these kinds of climate lawsuits to federal court.[10] This opens the door to more lawsuits against oil companies being brought in state court in the future.
D. Justiciability or the “political question doctrine” – the courts generally hesitate to interfere in matters that relate to the functioning of the other branches of government.[11] This poses issues for public nuisance claims relating to climate change because the courts tend to rule that climate change is a problem for legislatures to solve.[12]
E. Causation – common law tort claims need to establish factual causation (“that the alleged wrong actions in fact caused [the] plaintiffs’ harm”[13]) and legal causation (“that the wrong actions are sufficiently related to the injury”[14]). Climate change claims frequently fail at this stage because of the complexity of proving causation against a specific greenhouse gas emitter. However, improving climate science may make causation easier to prove in the future.
F. Remedies – courts are limited in the kind of remedies they can grant a successful plaintiff. The courts may be unwilling to grant injunctive relief to stop greenhouse gas pollution, especially against a private entity that provides jobs and economic benefit to the community. Plaintiffs are thus usually limited to monetary damages, which are difficult to quantify when faced with broad claims relating to climate change.
G. Costs – the high costs of pursuing litigation may disincentivize public interest plaintiffs from these kinds of claims. Several US environmental statutes like the Clean Air Act allow a successful plaintiff to recover the costs of litigation. However, this may not be the case for nuisance claims.
Climate change litigation against private entities in the US, typically centered around public nuisance claims, faces many obstacles listed above and to date,[15] there are no examples of successful climate change litigation against private entities that have not later been overturned on appeal. That being said, this kind of litigation still has potential to influence corporations to become more proactive and take climate change more seriously because of the reputational risks of this kind of litigation[16], as well as growing international precedents of courts holding polluters responsible for climate change.[17]
Examples of climate-related cases brought against companies under US law include Native Village of Kivalina v. ExxonMobil Corp., American Electric Power Co. v. Connecticut, and City of New York v. BP.
[1] Michael B. Gerrard & Gregory E. Wannier, “United States of America” in Richard Lord et al., eds., Climate Change Liability: Transnational Law and Practice (Cambridge University Press, 2011) at para 20.62 [G&W].
[2] See note 100 in G&W, quoting Restatement (Second) of Torts, para 821A.
[3] G&W at para 20.64.
[4] Randall S. Abate, “Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time”, (2010), 85 Washington Law Review 197 at 200 [Abate].
[5] Abate at 240.
[6] G&W at para 20.43A.
[7] G&W at para 20.85.
[8] See American Electric Power v Connecticut (2011).
[9] Jonathan H. Adler, “Displacement and Preemption of Climate Nuisance Claims”, (2022) Faculty Publications 2124, Case Western University Journal of Law, Economics and Policy 217 at 218.
[10] “US supreme court denies oil companies’ bid to move venue of climate lawsuits” (24 April 2023), online: The Guardian < https://www.theguardian.com/law/2023/apr/24/supreme-court-oil-climate-lawsuits-state-federal>.
[11] G&W at 20.87.
[12] G&W at 20.88.
[13] G&W at 20.89.
[14] G&W at 20.89.
[15] Written February, 2023.
[16] Geetanjali Ganguly et al., “If At First You Don’t Succeed: Suing Corporations for Climate Change”, (2018), 38:4 Oxford Journal of Legal Studies, 841 at 867.
[17] See cases like Vereniging Milieudefensie et al. v Royal Dutch Shell PLC (2019).