New Jersey has joined the ranks of Rhode Island, Delaware, Connecticut, Massachusetts, Minnesota and Vermont as the latest state to sue some of the world’s largest oil companies for their role in delaying climate policy and increasing the climate impacts, risks and costs borne by state governments. Like Minnesota and the District of Columbia before it, New Jersey has also included the industry’s top US trade group, the American Petroleum Institute, in its suit, which includes not only liability, but also fraud claims against five oil majors: ExxonMobil, Shell Oil, Chevron, BP and ConocoPhillips.
Some two dozen climate liability suits have been making their way through the courts since 2015, bolstered by media investigations and attribution studies that are able to accurately pinpoint the precise contribution climate change has made to the damages inflicted by extreme weather events. A 2021 study in the journal Nature, for example, found that just over $8bn (£7bn) of the $62.7bn (£55.3bn) in damages caused by Superstorm Sandy across New York, New Jersey and Connecticut, is attributable to sea-level rise caused by climate change.
Patrick Parenteau, professor and senior fellow for climate policy at Vermont Law School says that while these cases started as common law nuisance claims – these companies created the nuisance of climate change, which caused financial damages to various cities and states – they “have evolved to where the failure-to-warn based claims and duty of care type claims are coming to the forefront”, which is why the more recently filed cases all tend to include fraud claims as well. The damages and the fraud go hand in hand, the argument goes. The costs of dealing with climate change today are measurably higher because oil companies, aided by the American Petroleum Institute in this case, misled the public about climate change.
This “failure to warn” approach helps to narrow the fraud claims to something a court can actually rule on, according to Doug Kysar, deputy dean and professor at Yale Law School. “Earlier cases took a broader approach to fraud.”
“Like the industry engaged in a conspiracy of misinformation,” Kysar says. “And it ended up looking like a fraud on democracy … like this industry was so powerful and so diabolical in their efforts that they hoodwinked the entire government for the last few decades. To be honest, I think that that is what happened. But that’s an uncomfortable place for a court – to be willing to pronounce that an entire governmental system was manipulated and defrauded by powerful actors.”
Kysar says this approach instead poses a simple and relatively narrow question: “Would people have behaved differently? Would they have stopped buying gas-powered vehicles if they had a better understanding of the hazards of those products, not only to future generations, but now immediately to us – like would they behave differently? And I think that that’s probably a smart move from the plaintiffs’ lawyers’ perspective.”
In states like New Jersey, the damage caused by the delay is clear, according to Shawn M LaTourette, the state’s commissioner of environmental protection. “Our communities and environment are continually recovering from extreme heat, furious storms and devastating floods,” he said at a press conference announcing the case.
“These conditions will sadly only worsen in the decades ahead, leaving us scrambling to prepare for a parade of harmful climate changes. All this while we rush to wean ourselves off the very products these companies have long known would fuel our pain but deceived New Jerseyans about, because keeping us addicted was better for their bottom line.”
Like all of the previous cases, the New Jersey case will no doubt meet with various motions to dismiss from the fossil fuel defendants. So far, none of those arguments have worked, although lawyers for the city of Boulder, Colorado are waiting to see whether the supreme court will take up an appeal in that case.
