Is There a Path Toward Climate Accountability in the Courts – Even Under Trump?

In a campaign plan released last year, President-elect Trump pledged that his administration would “stop the wave of frivolous litigation from environmental extremists.”

That’s a reference to the dozens of state and local governments fighting to put Exxon and other oil companies on trial for spreading disinformation about their products’ harm to the climate. The first of those lawsuits were filed during the first Trump administration, which opposed the cases in court, and now many are finally moving forward in state courts after prevailing against Big Oil’s repeated attempts to derail them.

While the Trump administration can — and is expected to — do immense harm to the climate through regulatory rollbacks and other gifts to fossil fuel companies, it’s unclear how much of an impact Trump 2.0 and a Republican Congress could have on state and local efforts to hold the industry accountable through the courts. Legal experts said that while the election doesn’t have any direct impact on the cases, the new political landscape could create potential additional hurdles to their path toward trial.

“Despite the radical change in climate policy that we expect from the new administration,” the courts will remain “a critical bulwark against attacks on sound climate science and sound climate litigation,” said Denise Antolini, a retired University of Hawai‘i law professor.

“The courts are not going to fold overnight, they are a very strong system of checks and balances. But there of course are chinks in the armor,” she said.

A Trump DOJ

The Department of Justice could influence the fate of climate accountability in the courts. In the spring, congressional Democrats who led an investigation into the oil industry’s climate disinformation campaigns urged the DOJ to pursue its own probe into the matter, and potentially even file its own lawsuit, as it did against the tobacco industry in the 1990s.

That won’t happen under a Trump administration. But throughout the Trump and Biden presidencies, the Justice Department has weighed in — and been asked to do so by the U.S. Supreme Court — on various battles in state and local climate accountability lawsuits. While the Biden administration filed a brief in support of communities, the Trump DOJ routinely backed Big Oil — even arguing alongside oil companies at the U.S. Supreme Court on the very last day of Trump’s first term.

Matt Gaetz, Trump’s pick to be U.S. Attorney General, has said climate change is real but “doesn’t require surrender to AOC’s Green New Deal socialist Woketopia,” and has introduced legislation to abolish the EPA.

There are currently two pending requests from the Supreme Court for the Department of Justice to weigh in on petitions to hear cases that seek to stop communities from putting Big Oil on trial. The lame duck Biden administration now has a ticking clock to file their responses.

“It is absolutely critical that the Biden Department of Justice weigh in and plant a flag in the ground, because although the DOJ can amend or change [the opinion], it’s an opportunity to say the truth about what the law requires — speak truth while the window of opportunity is still open,” said Antolini.

In the first of those petitions, oil companies are asking the justices to review a decision from the Hawai‘i state Supreme Court that allowed a case brought by the city and county of Honolulu to keep moving toward trial. Honolulu aims to make Exxon, Shell, Chevron and other companies pay for some of the multi-billion-dollar costs to protect residents, homes, and infrastructure from floods, storms, heat waves, wildfires, rising seas, and other climate disasters.

Big Oil’s petition was backed by an “unprecedented” pressure campaign to convince the justices to act on the oil industry’s behalf, led by projects of the far-right billionaire and Supreme Court architect Leonard Leo, who has also been linked to oil company defendant Chevron. That campaign is an attempt to “bludgeon the Supreme Court into intervening when that would be so counter to the one guardrail that they’ve honored, which is not stepping on federalism,” said Robert Percival, a law professor and director of the University of Maryland’s environmental law program.

The second petition, a request filed by 19 Republican attorneys general, asks the Supreme Court to intervene in climate accountability lawsuits brought by five states: California, Connecticut, Minnesota, New Jersey and Rhode Island. Most of the petitioners are members of the Republican Attorneys General Association, which gets some of its biggest donations from defendants in the cases — including Koch Industries, Exxon, and the American Petroleum Institute.

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, called the petition “off the wall.” Pat Parenteau, an environmental law professor and senior fellow at Vermont Law School, said it was a “political stunt.” Percival called it “laughably outrageous.”

The Supreme Court is rarely ever asked to review a dispute between states unless it involves interstate pollution or water rights, and Parenteau and Percival agreed there would be “no basis” for the justices to intervene in this instance, while Gerrard said it would be “so disruptive of long-established practices.”

It’s unclear how much the justices would be persuaded to take up an issue in a climate accountability lawsuit if the Trump DOJ were to side with oil companies in these or future cases.

Legal Immunity From Congress

A unified Republican Congress could pose a different threat to communities’ ability to hold Big Oil accountable in court by providing some form of immunity to the fossil fuel industry that could prevent oil and gas companies from being held liable for certain activities.

While industries like tobacco, lead, and asbestos were held liable in court for their products’ harms, the gun industry was able to fend off similar litigation by enacting The Protection of Lawful Commerce in Arms Act, a legal shield for gun manufacturers and dealers. That waiver has largely prevented lawsuits against the gun industry from making it to trial.

The fossil fuel industry and its backers in Congress have publicly pursued a liability waiver at least twice before. In 2019, the Climate Leadership Council — a coalition boasting BP, ConocoPhillips, Shell, and TotalEnergies as partners — promoted a carbon pricing plan that included a stipulation that “no party should be liable for damages from past emissions that were legal at the time.” Then, during COVID-19 relief negotiations in 2020, language appeared in a draft bill that would have immunized fossil fuel companies from “covered activities,” according to a letter to House leadership led by U.S. Representative Jamie Raskin and signed by 60 Democratic representatives opposing the industry’s “immunity grabs.”

A liability waiver is “industry’s ultimate dream,” said Percival, “but given how closely divided Congress is, I would be shocked if that made its way through Congress. It would be such a giveaway to the industry.”

It’s unclear whether the new Republican Congress would pursue a liability waiver for the fossil fuel industry and what its scope would be. But for now the lawsuits represent one of the only remaining pathways to counter narratives of climate disinformation that will likely be amplified by the federal government itself, noted Parenteau.

“It’s not a stretch to say the message coming from the federal executive branch writ large and large numbers of Congress is going to be climate denial and misrepresentations,” Parenteau said. “So these cases and these jury verdicts are going to be even more important to correct the record to the extent you can.”

Many of the cases — like Honolulu’s — also provide an avenue for communities to recover the skyrocketing costs of climate adaptation and post-disaster cleanup.

The stakes of these cases are “not a theoretical issue,” said Antolini, noting that Maui — which has its own climate damages case — is still recovering from the deadly wildfires that killed more than 100 people last year.

“Just look at the horrific damage that we’re experiencing — the floods all through the South, the fires raging,” said Parenteau. “These companies are hellbent on exploring and exploiting and marketing and promoting yet more burning of fossil fuels, and yet they’re denying any responsibility to contribute to dealing with the damage. How do we pay for all this damage, how do we adapt to all this?”

The Fight Continues

The fossil fuel industry faces a significant increase in climate lawsuits worldwide — including in European courts, where oil majors could be forced to pay damages, reduce emissions, stop deceptive marketing, and even face charges of climate homicide. This week, a Dutch appeals court handed a defeat to one of the most important of those cases — nonprofit Milieudefensie’s landmark lawsuit against Shell, which would have forced the oil giant to reduce its emissions 45% by 2030. The court ruled that while Shell had a duty to limit its emissions, it couldn’t enforce a specific reduction percentage.

Despite the growing headwinds, “climate litigation continues to proliferate and evolve in the U.S. and around the world,” said Kathy Mulvey, accountability campaign director for the Union of Concerned Scientists. “The courts will remain a vital check on the fossil fuel industry’s reckless and harmful practices even as the incoming Trump administration promises giveaways, kickbacks, and gutting of environmental and health regulations.”

Environmental advocates and Democratic state attorneys general have vowed to fight Trump’s agenda in court. Trump is expected to, once again, withdraw the United States from the Paris climate agreement and will likely try to undo methane emission and energy efficiency regulations, withdraw federal corporate disclosure mandates for greenhouse gas emissions, and cancel the Biden administration’s pause on new liquified natural gas projects, among other rollbacks.

During his campaign, Trump offered oil executives their pick of legislative policies in exchange for $1 billion in donations, and he received an industry trade group’s playbook for how to dismantle existing climate initiatives.

“Looking carefully and closely at how some of these potential rollbacks are being effectuated is going to be a way to limit or slow them,” said Maggie Coulter, a senior attorney at the Center for Biological Diversity. “As we saw with the first Trump administration, there was some sloppiness in trying to get things unwound as quickly as possible, but that sloppiness made them vulnerable to challenge.”

“We might see less of that now,” Coulter said. “You learn from your mistakes.”