As fossil fuel interests attack climate accountability litigation, environmental advocates worry they are pursuing a path that would destroy all future prospects for such cases.
Nearly 200 advocacy groups have urged Democratic representatives to “proactively and affirmatively” reject potential industry attempts to obtain immunity from litigation.
“We have reason to believe that the fossil fuel industry and its allies will use the chaos and overreach of the new Trump administration to attempt yet again to … shield themselves from facing consequences for their decades of pollution and deception,” reads a letter to Congress on Wednesday. It was signed by 195 environmental groups such as the Sierra Club, Earthjustice and Sunrise Movement; legal non-profits including the American Association for Justice and Public Justice; and dozens of other organizations.
Over the last decade, states and municipalities have brought more than 30 lawsuits accusing big oil of intentionally covering up the climate risks of their products, and seeking potentially billions in damages. The defendants have worked to kill the cases, with limited success.
Now, with Republicans in control of the White House and both congressional chambers, advocates fear the industry will go further, pursuing total immunity from all existing and future climate lawsuits. To do so, they could lobby for a liability waiver like the one granted to the firearms industry in 2005, which has successfully blocked most attempts to hold them accountable for violence.
“Lawmakers must decisively reject any attempt by the fossil fuel industry to evade accountability and ensure both justice today and the right of future generations to hold polluters responsible for decades of deception,” says the missive, which is addressed to the House minority leader, Hakeem Jeffries, and Senate minority leader, Chuck Schumer.
Fossil fuel companies have vied for such a get-out-of-jail-free card for years. In 2017, a coalition of Republican officials, economists and oil companies proposed legal liability as a condition of a carbon tax, arguing the industry could not weather both. When the council abandoned the waiver proposal two years later, Exxon threatened to leave the group, documents subpoenaed by the Senate show.
Then, in 2020, a waiver was quietly included in a draft of a Covid-19 spending package but was later removed, the investigative climate outlet Drilled found.
Such a waiver could only pass through the Senate with supermajority support, requiring backing from some Democrats. In a January interview, Michael Gerrard, a climate law expert at Columbia University, said it is “hard to imagine” it winning bipartisan backing. But the advocates fear oil companies could lobby officials to once again quietly tuck the proposal into a larger, must-pass piece of legislation.
“Democrats need to be on guard,” said Aaron Regunberg, climate accountability project director at the consumer advocacy group Public Citizen, which signed the letter.
The authors of the letter do not have hard evidence of a current industry push for legal immunity, but their concerns come amid wider attacks on climate litigation.
On the campaign trail, Trump pledged to “stop the wave of frivolous litigation from environmental extremists”. And this month, a rightwing thinktank launched a campaign attempting to shoot down litigation from “radical climate groups”, which it called the “biggest risk” to Donald Trump’s energy agenda, E&E News reported. The thinktank has ties to Leonard Leo, who is widely known as a force behind the Federalist Society, which orchestrated the ultraconservative takeover of the American judiciary.
Last year, Leo-tied groups also launched another campaign, which one expert called “unprecedented”, to convince the supreme court to shield oil companies from lawsuits. In decisions this week and in January, the high court denied their request.
A truck parked outside a major fossil fuel conference on Monday in Houston, warned that “lawfare and anti-energy laws are threatening America’s pro-consumer energy dominance,” linking to an op-ed from a group with links to Leo
Climate superfund laws
Another development sparking worry at oil companies: “climate superfund” bills, meant to make big polluters help pay for climate action.
Last year, Vermont and New York passed such measures, which are loosely modeled on the US superfund program. Ten other states are considering similar proposals, which could each cost the industry billions or trillions.
Red states and oil lobby groups are legally challenging the laws. This week, the Federalist Society – which Leo co-chairs – hosted a panel criticizing the measures.
“If they are seeking a liability waiver, they might also seek congressional action precluding the state climate superfund laws,” Gerrard said.
It is a major fear for Cassidy DiPaola of the pro-climate superfund group Make Polluters Pay, which signed the letter.
“What’s at stake here isn’t just who pays for climate disasters,” she said. “It’s whether our democracy allows powerful industries to simply rewrite the rules when justice catches up to them.”
