There’s No Time to Waste in Bringing the Carbon Barons to Justice

Climate liability cases are gaining ground just as Big Oil is going broke

By Jason Mark

July 29, 2020


Photo by Javier_Art_Photography/iStock

This article was published jointly with The Nation magazine.

The Carbon Barons are in trouble. Landmark lawsuits against ExxonMobil and other fossil fuel giants charging that they have caused—and lied about—the climate crisis are making real headway. Unfortunately, they’re doing so just as Big Oil is in danger of going broke, which jeopardizes the chances to make these companies pay for the damage they’ve caused. 

Since 2017, more than a dozen states, counties, and municipalities across the United States have filed lawsuits against the biggest oil producers—ExxonMobil, Chevron, Shell, BP, et al.—alleging that the companies harmed communities by selling products they knew to be dangerous. While these lawsuits are particular to place—some cite the damage from rising sea levels; others focus on the destruction caused by climate-fueled wildfires and flooding—all seek to recover the costs to those communities as they adapt to climate chaos. 

At one point, it looked like the oil giants would receive a get-out-of-jail-free card. In 2018, a federal judge in San Francisco dismissed climate liability suits brought by San Francisco and Oakland, ruling that the issue needed to be settled by Congress, and a federal court in Manhattan subsequently tossed out a New York City claim. The Carbon Barons then petitioned to move the other lawsuits from the state courts where they were filed to federal courts. Federal courts are generally considered a more sympathetic venue for Big Oil, because suits there may get tangled up in knotty constitutional questions. The plaintiffs want to keep their cases in the state courts and argue that their lawsuits are uncomplicated tort claims not unlike the successful lawsuits against the tobacco companies.  

In the past few months, federal judges have been agreeing with the plaintiffs. In July, the Tenth Circuit Federal Appeals court rebuffed ExxonMobil and other defendants in a Colorado case. In late May, a Ninth Circuit court panel ruled unanimously that suits filed by six California counties and cities should be settled by the California courts. Judges with the Fourth Circuit Court of Appeals came to the same conclusion in a Baltimore case, at one point slapping Chevron and other defendants with a terse, “They are wrong.” 

Other jurisdictions are now piling on. In late June, the District of Columbia and the state of Minnesota announced lawsuits against ExxonMobil, oil refining company Koch Industries, and the American Petroleum Institute. Those suits go beyond earlier complaints by arguing that the Carbon Barons’ decades-long campaign to sow uncertainty about the science of global warming violates local statutes against consumer fraud, deceptive trade practices, and false advertising.  

The new lawsuits and procedural wins arrive as Democrats are showing strengthened resolve to hold the fossil fuel giants accountable for their crimes. Not long ago, the Carbon Barons were operating under the delusion that they could strike a grand political bargain in which they would agree to support a price on carbon in exchange for blanket legal immunity. (Congress has the constitutional power to give an industry or a company a “liability waiver”; gun manufacturers enjoy such immunity.) That pipe dream is now crumbling. House Democrats recently released a comprehensive plan for addressing the climate crisis that includes a pointed rebuke to the idea of a congressional liability waiver: “Congress should not offer liability relief . . . to cut pollution in exchange for a carbon price.” Joe Biden’s climate plan includes a promise that, should he be elected, the federal government will become an ally of the state, county, and municipal lawsuits. 

Calls to bring the Carbon Barons to justice are smart politics. A 2019 survey by the Yale Program on Climate Change Communications found that 57 percent of Americans favor having the fossil fuel companies pay for climate-related damages. A poll released in July by Data for Progress found that more than three-quarters of Democratic voters and 63 percent of independents want to hold the oil companies responsible for climate damages. More than 60 percent of Republicans who are younger than 45 agree.  

Here’s where things get tricky. The progress in the courts and the shift in politics and public opinion are occurring just as the Carbon Barons’ fortunes are dwindling. 

For years now, oil and gas giants have been struggling against an oversupply of a commodity the world is trying to turn away from. In December, Chevron was forced to write-down $10 billion in assets, a move that, according to The New York Times, signaled that the shale gas “boom has given way to bust.” By the end of 2019, North American oil and gas companies were saddled with an estimated $200 billion of debt, and Wall Street was starting to look askance at an industry that has underperformed the S&P in four of the last five years. In January, loud-mouth market guru Jim Kramer went on a rant in which he said the oil giants are in a death spiral because “the world has turned on them.”

Then the pandemic arrived. As businesses shut down and streets emptied, demand for oil fell off a cliff; at one point this spring, there was such a glut that oil briefly traded at negative prices. While the oil and gas companies are still an economic behemoth—the total capitalization of the industry is around $1 trillion—the pandemic appears to have accelerated their decline. Today, Apple alone is worth more than all of the oil and gas majors combined. The pandemic-related recession has even sparked chatter that we might have reached the historic peak of global oil demand. “Could it be peak oil?” the CEO of BP mused in May, not long before announcing sweeping layoffs. “Possibly.” 

The raft of climate tort cases are, above all, a demand for justice. The Carbon Barons amassed some of the largest fortunes in history through deception and the manufacturing and marketing of a product they knew was dangerous. Basic fairness requires that they pay for the damage they have caused. Adapting to rising temperatures, higher seas, and more climate-related disasters will likely cost trillions of dollars (with a t) in the course of this century. Someone will have to pick up the tab. That someone will either be you and me or it will be the companies that have done the most to imperil civilization. 

The danger now is that as oil company officials see justice closing in, they will try to grab for themselves as much of the remaining profits as they can. Look for a wave of executive bonuses, stock buy-backs, and asset liquidations designed to transfer oil company wealth to those at the top. ExxonMobil, for example, has been on a multiyear stock buy-back binge, a scheme that enriches executives even as a company suffers. 

All of which intensifies the urgency of demands for climate reparations. All calls for justice are urgent—but this one is especially so, because it’s racing against a clock driven by the implacable force of atmospheric chemistry. This year is on track to be the first or second hottest in history; Siberia is on fire; much of Australia was already burned to a crisp. There is no time to wait.  

Dr. Martin Luther King Jr. famously said, “The arc of the moral universe is long, but it bends toward justice.” With Earth systems beginning to boil, we can’t afford to wait for the long touchdown with justice. We need—to use a term of 2020—to flatten the curve of the moral arc. We need accountability now. The longer the courts wait to address the Carbon Barons’ crimes, the greater the chance that the oil executives and their shareholders will make off with their ill-gotten gains and leave the rest of us holding an empty bag. Justice demands better than that.