State, tribal, territorial, and local governments have brought more than 40 cases against oil companies in both state and federal courts for damages caused by climate change. Sabin Ctr. for Climate Change Law, U.S. Climate Change Litigation Database: Adaptation, Actions Seeking Money Damages for Losses, Colum. Univ. This article provides an overview of the claims that the plaintiffs are asserting, the defenses that the oil companies are raising, the key decisions to date, and what to expect going forward.
Governmental climate damage litigation has thus far proceeded through two rounds. In round one, the federal courts uniformly rejected the oil companies’ attempts to remove the cases from state to federal court. In round two, the state courts have so far denied motions to dismiss the cases based on federal preemption and other grounds, with one exception. It is likely that there will be a round three with some cases moving to trial.
Causes of Action and Remedies
Unlike other climate litigation, these cases do not seek injunctive relief aimed at capping or regulating carbon emissions. Indeed, they assume that emissions and the damage they cause will continue for the foreseeable future.
The governments’ causes of action against oil companies have fallen into three main categories, all based on state law: (1) traditional common law tort theories of nuisance (public and private), negligence, trespass, strict/joint and several liability, failure to warn, and defective product; (2) statutory and common law claims for consumer fraud, misrepresentation, deceptive advertising, and unfair business practices; and (3) racketeering claims under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968, and counterpart state laws. The common element in every case is the allegation that defendants have conducted a multidecade “campaign of deception” to mislead consumers, investors, and public officials about the science of climate change and failed to disclose their knowledge that fossil fuel products cause climate change.
Governments seek two broad kinds of remedies. For causes of action based on tort, the plaintiffs are seeking cost recovery for the damage caused by climate change and funding for adaptation. For causes of action based on consumer protection, the plaintiffs are seeking civil penalties, disgorgement of profits made from deceptive conduct, corrective advertising, and other relief. Disgorgement is a remedy requiring a party who profits from illegal or wrongful acts to give up any profits they made because of that illegal or wrongful conduct. See, e.g., Sec. & Exch. Comm’n v. First Jersey Sec., Inc., 101 F.3d 1450, 1474–75 (2d Cir. 1996).
First Round: Removal to Federal Court
The oil companies lost the first round. They attempted to remove many of the state cases to federal court, claiming, among other things, that damage lawsuits for climate change are ultimately matters of federal common law.
Successful federal displacement arguments would have ended the state and municipal government lawsuits. The U.S. Supreme Court held in 2011 that the federal Clean Air Act (CAA) displaces federal common law with respect to interstate air pollution, including carbon dioxide. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) (AEP). One year later, in Native Village of Kivalina v. Exxon Mobil Corp., a federal appeals court barred monetary damage claims for climate change based on federal common law. 696 F.3d 849 (9th Cir. 2012).
However, because the governments based their claims on violations of state law rather than federal law, federal appeals courts uniformly sided with these plaintiffs and sent their cases back to state court. In April 2023, the U.S. Supreme Court denied certiorari petitions to review the remands. See, e.g., BP P.L.C. v. Mayor & City Council of Balt., 31 F.4th 178 (2022), cert. denied, 143 S. Ct. 1795 (2023).
Second Round: Motions to Dismiss
The oil companies next moved to dismiss all the cases without a trial. Their principal argument is that federal law precludes state-law claims seeking redress for injuries caused by the effects of interstate and international greenhouse gas (GHG) emissions on the global climate. Specifically, they argue that the CAA preempts state-based claims for damages that ultimately depend on proof of harm from the emissions. Alternatively, defendants argue that the Supreme Court’s decision in AEP requires dismissal because the displaced federal common law nevertheless preempts plaintiffs’ claims.
The plaintiffs respond that their claims are not based on emissions from sources regulated under the CAA. Rather, they are based on the production and false promotion of fossil fuels that defendants knew were the cause of dangerous climate change. Among other evidence, plaintiffs point to research demonstrating that industry scientists were well aware of mainstream climate science at the same time that ExxonMobil Corporation and other companies were carrying out campaigns of denial and delay. See, e.g., G. Supran et al., Assessing ExxonMobil’s Global Warming Projections, 379 Science 153 (2023). In addition, the plaintiffs respond that the AEP Court explicitly preserved state-based common law claims such as the state tort and consumer law claims at issue.
The oil companies also assert First Amendment protection for their marketing of their products and their public statements regarding climate change. In Citizens United v. Federal Election Commission, the Supreme Court held that laws that impose burdens on political speech are subject to “strict scrutiny,” which requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. 558 U.S. 310, 340 (2010). The plaintiffs argue that the companies have engaged in commercial speech, which is subject to a lower standard of “intermediate scrutiny” to pass constitutional muster. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 573 (1980). These cases thus present novel questions regarding the scope of protected speech and the duty of companies to publicly disclose the environmental risks of their products. Defendants also argue that the courts lack personal jurisdiction based on the minimum contacts test under International Shoe Co. v. Washington, 326 U.S. 310 (1945), and they assert due process violations based on lack of “clear notice.” See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021).
Key to all these cases is proof that defendants’ conduct caused or substantially contributed to damages and costs that the governmental entities incurred. Plaintiffs must address two levels of proof of causation. The first relies on the emerging field of “attribution science,” which uses complex models to assess the role that human-caused climate change plays in increasing the likelihood and intensity of extreme weather events such as hurricanes, sea level rise, flooding, drought, and heat waves. Friederike Otto et al., The Science of Attributing Extreme Weather Events and Its Potential Contribution to Assessing Loss and Damage Associated with Climate Change Impacts, Env’t Change Inst., Sch. of Geography & Env’t, Univ. of Oxford (n.d.).
The second and more challenging level of proof requires analyses to estimate how many tons of carbon can be attributed to individual corporations. This level of proof relies primarily on the work of Richard Heede and the Climate Accountability Institute. See, e.g., Richard Heede, Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010, 122 Climatic Change 229 (2014). Defendants will challenge both types of scientific proof, and only time will tell how judges and juries handle them.
Finally, 19 other states have filed a motion with the U.S. Supreme Court for leave to file a complaint against the five states (California, Connecticut, Minnesota, New Jersey, and Rhode Island) that are pursuing these damages lawsuits, mirroring many of the arguments that the oil companies have made. Alabama v. California, No. 158 Orig. (U.S. filed May 22, 2024). These 19 states claim that federal law must govern actions concerning GHG emissions, and that the states lack the legal authority to pursue these lawsuits. As this article goes to press, a decision on the motion is pending.
Second Round Decisions
State courts have thus far responded to the defenses mentioned above in dramatically different ways. For example, in 2023, the Hawai’i Supreme Court gave a green light to allow the governments’ case to proceed. City & Cnty. of Honolulu v. Sunoco LP, 537 P.3d 1173 (Haw. 2023). The court denied defendants’ due process arguments, holding that they were subject to specific personal jurisdiction and “had—at a minimum—‘fair warning’ they could be subject to suit in Hawai`i” Id. at 1195.
The Hawai’i Supreme Court also rejected defendants’ claim that displaced federal common law preempts the plaintiffs’ damage claims, reasoning that displaced federal common law cannot have that effect because it no longer exists. “Were we to adopt Defendants’ argument that displaced federal common law preempts Plaintiffs’ state law claims,” the court reasoned, “Plaintiffs could not recover under Hawai‘i tort law, even where the state specifically permits lawsuits to hold companies responsible for allegedly deceptive marketing claims about any product, including oil and gas products.” Id. at 1207. Finally, the court held that the CAA does not expressly preempt state-law tort claims, nor does it implicitly preempt these claims by leaving no room for state law or by making it impossible for a party to comply with both federal and state law. Id. at 1203–07.
The defendants in Honolulu petitioned the U.S. Supreme Court for a writ of certiorari. The Court, in turn, asked for the views of the solicitor general, which opposed the petition. On January 13, 2025, the Court denied the petition in a per curiam order. Had the Court accepted the petition, at a minimum it would have delayed the cases and could have led to an adverse decision, dealing a fatal blow to many if not all of the claims asserted. The parties are in discovery and a trial could happen as early as 2026.
In Colorado, in June 2024, the District Court of Boulder County also denied the oil companies’ motions to dismiss and allowed the case to proceed toward discovery and trial. Order Re Defendants’ Motion to Dismiss, Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.), Inc., No. 2018CV30349 (Colo. Dist. Ct. June 21, 2024). In an 81-page opinion that relied heavily on the Hawai’i Supreme Court’s decision in Honolulu, the court held it had personal jurisdiction over ExxonMobil and Suncor USA. It also ruled that the public nuisance, private nuisance, trespass, conspiracy, and unjust enrichment claims against the companies were not preempted by the CAA, federal common law, the First Amendment, or any of the other federal doctrines that the oil companies asserted.
In his opinion, Colorado District Judge Robert R. Gunning rejected the companies’ efforts to characterize the case as an attempt to litigate climate policy or control GHG emissions. Instead, “a major focus of the litigation is the claim that the Energy Companies’ actions have tortiously caused harm to local communities and the Energy Companies have misled the public about the dangers of fossil fuels.” Id. at 40. Noting that the “lawsuit is not seeking injunctive relief or asking the Court to regulate or limit fossil fuel emissions,” Judge Gunning found that plaintiffs were seeking damages under Colorado tort law “for harms and costs caused by the Energy Companies’ alleged tortious actions.” Id.
In July 2024, however, the Colorado Supreme Court issued an order requiring the local governments and the district court to address “[w]hether the district court erroneously concluded that respondents’ claims could proceed under state law.” Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy USA, Inc., Sup. Ct. Case No. 2024SA206 (July 29, 2024). The case has been scheduled for oral argument with a decision expected in 2025.
The Delaware Superior Court, in turn, has given that state’s case a yellow light to proceed. State ex rel. Jennings v. BP Am. Inc., 2024 WL 98888 (Del. Super. Ct. Jan. 9, 2024). In responding to the defendants’ motion to dismiss, the court held that the CAA does not preempt state law actions for damages from sources in Delaware but does preempt claims for “damages for injuries resulting from out-of-state or global greenhouse emissions.” Id. at *29. In addition, the court limited the state’s environmental-based public nuisance and trespass claims to “land the State owns directly, but not for land the State holds in public trust.” Id. at *66.
The court reserved decision on several issues until later in the proceedings. Thus, the court found that “the State has stated a claim for failure to warn” by alleging “that Defendants knew that their products were endangering the environment, and harming their consumers and the State of Delaware (a valid bystander).” Id. Still, it held that the question of “whether the danger was open and obvious,” a necessary element for the state’s claim, “is not appropriate for resolution at the dismissal stage.” Id. Similarly, the court reserved the First Amendment issue for a later stage: “The issue of commercial speech, as opposed to misleading statements, involves a fact-intensive analysis. It is inappropriate for resolution on this motion to dismiss.” Id. at *67. The court also held that the state’s claims under the Delaware Consumer Fraud Act were barred by a five-year statute of limitations.
On May 8, 2024, the Delaware Supreme Court denied the state’s petition for an interlocutory appeal. State ex rel. Jennings v. BP Am. Inc., 2024 WL 2044799 (Table) (Del. May 8, 2024). It found that there were no exceptional circumstances warranting review of the superior court’s decision and that the potential benefits of interlocutory review did not outweigh the inefficiency, disruption, and probable costs caused by an interlocutory appeal. The case is currently in discovery with no trial date scheduled.
Finally, the Circuit Court for the City of Baltimore gave a red light to the city’s long-standing lawsuit for damages, granting the defendants’ motion to dismiss. Mayor & City Council of Balt. v. BP P.L.C., Case No. 24-C-18-004219 (Md. Cir. Ct. July 10, 2024). The court held that federal common law and the CAA preempted the plaintiffs’ claims. Characterizing the plaintiffs’ claims as ultimately directed at damages from global GHG emissions, the court reasoned that AEP did not displace federal common law for global emissions. The court also accepted the defendants’ argument that a damages remedy “is tantamount to regulation,” and thus preempted by the CAA. Id. at 18–19.
On the state-law nuisance claims, the court was persuaded that “Maryland only recognizes nuisance claims that are based on use of land” and “does not recognize nuisance claims based on production, promotion and sale of a consumer product” Id. at 20. The court rejected plaintiffs’ claims that the oil companies tortiously failed to warn because “Baltimore does not allege that its injury comes from its own use of or direct exposure to Defendant’s fossil fuels but from consumers’ decisions to use fossil fuels across the globe for many years.” Id. at 26. The court also rejected plaintiffs’ claims concerning design defects, trespass, and the Maryland Consumer Protection Act. The case is on appeal to the Appellate Court of Maryland (No. ACM-REG-1290-2024).
In January 2025, the Circuit Court for Anne Arundel County followed suit and dismissed the cases filed by the City of Annapolis and Anne Arundel County against BP and others, ruling that the “U.S. Constitution’s federal structure does not allow the application of state court claims like those presented. . . .” City of Annapolis v. BP P.L.C., Case No. C-02-CV-21-000565 (Md. Cir. Ct. Jan. 23, 2025). Attorneys for the city and county have vowed to appeal.
The takeaway from these early decisions is that climate litigation presents a host of challenging legal and factual issues that will take some time to sort out. The cases are not a monolith. They present different claims, facts, defendants, and legal precedents. They are being heard by different judges deciding novel questions that ultimately must be resolved by the highest courts in each state.
An Alternative
For the plaintiffs in these cases, the core issue is one of fairness. Under the polluter-pays principle, those responsible for pollution are held responsible for the damage they cause, not taxpayers. Fundamental fairness suggests that those in a position to avoid or lessen the damage should be held accountable when they fail to act or, worse, actively mislead the public and stymie government action to address the problem.
One alternative is based on the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) of 1980, 42 U.S.C. §§ 9601–9675. As originally enacted, CERCLA imposed a tax on the chemical and petroleum industries that was deposited in a trust fund (known as Superfund) for cleaning up hazardous substance disposal sites. CERCLA also imposes joint and several liability on persons responsible for releases of hazardous substances on those sites, which provides additional funding for site cleanups. A CERCLA-like tax, coupled with direct liability for climate change damage, could be a more effective remedy than litigation for the additional damage that climate change causes in severe weather events. For a proposed federal version of this alternative, see Anthony Moffa, From Comprehensive Liability to Climate Liability: The Case for a Climate Adaptation Resilience and Liability Act (CARLA), 47 Harv. Env’t L. Rev. 473 (2023).
States have already started to adopt or propose their own versions of climate-adapted CERCLA. Vermont, for example, has enacted a first-in-the-nation Climate Superfund Act. Vt. Stat. Ann. tit. 10, §§ 596–599c. The Act establishes a new Climate Superfund Cost Recovery Program, to be administered by the Climate Action Office within Vermont’s Agency of Natural Resources. The law will require “compensatory” payments from entities that the Agency deems “responsible parties.” Id. § 597(1). The law defines a “responsible party” to be an entity that “engaged in the trade or business of extracting fossil fuel or refining crude oil” (with fossil fuel including coal, petroleum products, and fuel gases), and that the Agency determines is accountable for more than one billion metric tons of certain GHG emissions between January 1, 1995, and December 31, 2024. Id. § 596(22). The Climate Superfund Act appropriates $300,000 for fiscal year 2025 for the purposes of hiring consultants or third-party services to assist in the completion of the assessment required to determine the cost to Vermont of covered GHG emissions, with the assessment due by January 15, 2025. Id. § 599c. A lawsuit challenging the act as unconstitutional and preempted by the federal Clean Air Act was filed at the end of 2024. Chamber of Commerce of the USA v. Moore, No. 2-24-cv-01513 (D. Vt., filed Dec. 31, 2024).
The New York legislature followed on the heels of Vermont, passing a similar bill that Democratic Governor Kathy Hochul signed into law in December 2024. The New York Department of Conservation would oversee the New York Climate Change Superfund Act, which covers GHG emissions between January 1, 2000, and December 31, 2018. Bill No. SO2129B (2024). In addition, California (SB-1497 (2023–2024)), Maryland (SB 958 (2024)), and Massachusetts (Bills H.872 & S.481 (2023)) all have proposed legislation that would enact similar programs.
The legal challenges to Vermont’s law (and likely the New York law) will almost certainly take years to resolve. Notably, CERCLA weathered similar challenges after Congress enacted it in 1980. William H. Rodgers Jr., Environmental Law § 8.8(A) (1994).
After yet another record year of heat and two devastating hurricanes, it is increasingly clear that climate change is making extreme weather events more frequent and costlier. The issue of who pays for the resulting damage is not going away, however the particular government cases currently being litigated are decided. Some argue that these cases are stretching tort law beyond where it can reasonably go. But tort law, made by judges, case by case, has always been flexible; it changes over time in response to social, cultural, economic, and technological pressures.
As two of our colleagues have written, “the private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change.” Jim Rossi & J.B. Ruhl, Adapting Private Law for Climate Change Adaptation, 76 Vanderbilt L. Rev. 827, 827 (2023). Indeed, the question is not so much how tort law will impact climate litigation but how climate change will force courts to confront difficult questions of harm, causation, and responsibility.
