Buyer, beware. Climate lawfare is unsafe at any speed.
There is a huge difference between a society under the rule of law and a society under the rule of lawyers. The rule of law treats law as a product of legitimate, deliberate democratic acts, which remains stable, predictable, written down for all to know until changed by another such act of the people. As George Washington described in his farewell address, “The Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” The rule of lawyers, by contrast, sees law as an invitation for creativity by a small coterie of legal elites who can make it the vanguard for social change without consulting the governed.
At times, this can seem like an elaborate prank. But even when the theories are so preposterous as to deserve mockery, it’s no laughing matter. So it is with the drive to make “climate homicide” a thing in the courts without it ever passing legislatures. So it is with a first-of-its-kind lawsuit in state court in Seattle blaming the death of a Washington woman in a non-air-conditioned car during a 2021 heat wave on five oil companies (Exxon Mobil, BP, Chevron, Shell, and ConocoPhillips) on the theory that they have been “altering the Earth’s atmosphere.” The complaint adds one pipeline company (Olympic Pipeline, a BP subsidiary) that is based in Renton, Wash., apparently for the sole purpose of preventing the case from being removed to federal court on grounds of diversity of citizenship. The complaint’s allegations say nothing else about the conduct of the pipeline company, so one would expect that the rest of the defendants will argue that Olympic was improperly added to the case and that the case really ought to be removed to federal court.
Forum-shopping shenanigans aside, the theory of the case is ridiculous. The model is lawsuits against the cigarette companies, but individuals smoke cigarettes sold by particular companies. The theory here is that the fossil fuel companies have injured everyone in the entire world now and in the future by means of any business operations with any customers, with the chain of causation running through the atmosphere and climate of the entire planet. Fundamental to the law — to the point that the Supreme Court was drawing on it as an analogy as recently as four days ago in refusing to trace environmental impacts beyond the first step — is the concept of proximate causation of injury, which limits how many intervening steps can be traced before deciding that the plaintiff’s injuries are not the legal responsibility of the defendant. As the Supreme Court has often reiterated in rejecting creative and ambitious efforts to show proximate cause, “the general tendency of the law, in regard to damages at least, is not to go beyond the first step.”
Nothing in the history of Anglo-American law allows a chain of causation this attenuated to masquerade as proximate causation of particular injuries. It’s an insult to the memory of Rube Goldberg. The complaint asserts that these oil companies’ “willful and deceitful campaign has influenced the public’s purchasing and investment decisions for decades, driving increased demand for fossil fuels,” and “has also reduced demand for and investment in clean energy, thereby delaying the clean energy transition.” That’s a lot of intervening decisions by other people, companies, governments, and electorates. These oil companies are big, but are they big enough by themselves to change the climate of the entire planet? Are they, and not the end users of their products, responsible for emissions by end users’ cars, trucks, and factories? The complaint asserts claims for wrongful death, public nuisance, and products liability under Washington State law. The theory of product liability — which blames the makers of fuel for everything powered by that fuel — is that “these products have never been safe because their intended use or foreseeable misuse creates a risk of catastrophic harm to the climate and humankind.”
David Gelles of the New York Times finds a “former federal prosecutor” willing to endorse this, which is yet another reminder that “former federal prosecutor” just isn’t the pedigree of sound judgment that it was some decades ago:
“There’s a reasonable framework for a complaint,” said Cindy Cho, a former federal prosecutor who now teaches law at Indiana University Bloomington and is not involved in the case. “You have a chain of causation, and yes, you have to back it up with that evidence. But the allegations, taken at face value, are reasonable.”
Can billions of people sue these companies out of existence without laying a glove on Chinese or Russian industry? Before adopting such a wacky scheme with such vast consequences, the least a democratic society can ask is that the people’s representatives ratify it. Moreover, there are grave First Amendment issues in the complaint’s demand that the defendants be compelled to engage in “a public education campaign to rectify Defendants’ decades of misinformation.”
It’s not clear who is funding the case, which lists only a pair of small Missoula, Mont., law firms on the complaint. But Gelles locates some groups willing to claim responsibility, reporting that the plaintiff “was first approached in late 2023 by a nonprofit group, the Center for Climate Integrity, which helps assemble and promote cases against big oil and gas companies.” “She then began working on building a case with Tim Bechtold, a lawyer in Montana with an interest in climate and environmental law.” He also gets a supportive quote from David Arkush, director of the climate program at Public Citizen.
It gets worse, reports Gelles:
Legal scholars have been anticipating the filing of a case like this for years. In 2023, a paper published in the Harvard Environmental Law Review made the case that prosecutors could charge oil companies with criminal homicide and “every type of homicide short of first-degree murder.”
Public Citizen is one of the groups pushing for this. Arkush published a 2024 paper for Public Citizen with three co-authors — one of them that same Professor Cho — titled “Charging Big Oil with Climate Homicide Preliminary Prosecution Memo for July 2023 Heat Wave.” There’s a lot of money behind this sort of thing, and as our James Lynch reported last week, some of those interests receive taxpayer money and fund “studies” designed to advance their theories. Buyer, beware. Climate lawfare is unsafe at any speed.