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Climate Change Litigation

More and more civil courtrooms across the country are becoming battlegrounds for justice against defendants who are being challenged to accept their fiscal and ethical responsibility for widespread global harms resulting from climate change. Climate change litigation is being fought on two fronts, advancing claims against:

(1) a variety of public, governmental entities at federal, state, and local levels; and

(2) a growing number of private entities including international fossil fuel companies, powerful oil and gas industry lobbyists, and multi-national insurance carriers (e.g., Koch Industries was recently sued for the first time in a climate change suit filed by the Minnesota Attorney General.)

These civil lawsuits are complicated in their scope. Not only is compensation sought for documented injuries sustained by climate change, past and present, but these cases also seek damages to cover future needs such as adaptation costs; expenses necessary to stop future emissions and harm; and injunctive relief to force compliance and protection in the future.

WigRum is dedicated to the fight against the outrageous environmental harm being suffered in the State of Texas and elsewhere directly due to climate change. Our past experience in litigating against some of the largest fossil fuel companies in the United States (if not the world) sadly serves as a further incentive to combat the entrenched corporate profit-over-people rationale that we believe has allowed this worldwide environmental crisis to happen.

What is Climate Change?

Climate change is no longer debatable or hypothetical. It is a fact that the earth’s climate has been altered because of the burning of fossil fuels. Nature has responded in ways that pose significant property dangers including wildfires, flooding, and droughts. There is also a confirmed, direct damage to individual human health, with serious or fatal bodily injury as a result.

As explained in a recent research paper by Caren G. Solomon, M.D., M.P.H., and Regina C. LaRocque, M.D., M.P.H of Massachusetts General Hospital, Boston:

“Disruption of our climate system, once a theoretical concern, is now occurring in plain view — with a growing human toll brought by powerful storms, flooding, droughts, wildfires, and rising numbers of insectborne diseases. Psychological stress, political instability, forced migration, and conflict are other unsettling consequences. In addition, particulate air pollutants released by burning fossil fuels are shortening human life in many regions of the world. These effects of climate disruption are fundamentally health issues, and they pose existential risks to all of us. People who are sick or poor will suffer the most.”

For more, read Solomon, Caren G., and Regina C. LaRocque. "Climate change—a health emergency." New England Journal of Medicine 380.3 (2019): 209-211.

Civil Causes of Action: Climate Change Litigation Claims

Depending upon the particular circumstances, a private civil case may be brought based upon a number of existing and established legal bases under Texas law or federal statute. These include the following:

  • Nuisance
  • Trespass
  • Breach of the Duty to Warn (Negligence)
  • Strict Liability (Negligence)
  • Fraud
  • Civil Conspiracy
  • Violation of Consumer Protection Statutes
  • Breach of Fiduciary Duty (Shareholder Litigation).

Awards in these matters can include economic and noneconomic damages, including exemplary or punitive damages upon the establishing of proper proof, as well as injunctive relief.

Civil Causes of Action: Climate Change Litigation Hurdles

Not only are these lawsuits complex factually, but they come with specific legal hurdles for the victim’s advocate to understand and overcome. These include the following:

The claimant’s right to sue: Standing

In many climate change lawsuits, a defense challenge to the party plaintiff must be expected. In Texas, as well as under federal law, the plaintiff must demonstrate his or her connection to the event and a corresponding harm before they will be allowed to proceed. Standing, in other words, must be solidified by the plaintiff, because a defense challenge to his or her right to sue for damages is to be expected.

The defendant’s bad acts: Causation

Research into the realities of climate change is ongoing and new findings are being scientifically substantiated all the time. In climate change litigation, the civil case must establish a direct connection between the events at issue and a resulting harm with authenticated and admissible evidence. Plaintiff’s climate change advocates are well aware that causation will be zealously challenged by the defense in any climate change matter.

The defendants’ responsibility: Apportioning Liability

A third expected fight in most climate change civil lawsuits will be when there are multiple defendants at the defense table. The plaintiff in these cases not only has the duty to prove up causation, but must be prepared to point the finger at the various defendants and establish who is responsible for what percentage of the established harm. Apportioning liability among the defendants will be a challenge to be met by the plaintiff’s advocate in any Texas climate change matter where two or more parties are responsible for what has occurred.

The proper forum: Climate Change as a Justiciable Issue

In some parts of Texas, there are those that scoff at climate change harm as a reality today, to be address in civil causes of action. This may include a skeptical member of the bench. Zealous plaintiff’s advocates in civil climate change lawsuits must be prepared to address concerns that the causes of action asserted by the plaintiff are justiciable and that in 2020, climate change damage suits are proper for the courtroom.

See, for example the recent opinion published by the Fort Worth Court of Appeals in City of San Francisco v. EXXON MOBIL CORPORATION, No. 02-18-00106-CV (Tex. App. June 18, 2020). There, the majority voices its distaste for private climate change civil lawsuits as “lawfare” that would be better served as legislative or executive action:

“We confess to an impulse to safeguard an industry that is vital to Texas's economic well-being, particularly as we were penning this opinion weeks into 2020's COVID-19 pandemic-driven shutdown of not only Texas but America as a whole. Lawfare is an ugly tool by which to seek the environmental policy changes the California Parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do to persuade their constituents that anthropogenic climate change (a) has been conclusively proved and (b) must be remedied by crippling the energy industry. And we are acutely aware that California courts might well be philosophically inclined to join the lawfare battlefield in ways far different than Texas courts.

“Being a conservative panel on a conservative intermediate court in a relatively conservative part of Texas is both blessing and curse: blessing, because we strive always to remember our oath to follow settled legal principles set out by higher courts and not encroach upon the domains of the other governmental branches; curse, because in this situation, at this time in history, we would very much like to follow our impulse instead.

“In the end, though, our reading of the law simply does not permit us to agree with Exxon's contention that the Potential Defendants have the purposeful contacts with our state needed to satisfy the minimum-contacts standard that binds us.”

WigRum Advocates for Victims in Climate Change Litigation

Our law firm adamantly believes in the rights of victims to pursue civil claims for damages they have suffered as the result of climate change. Indeed, it has been our experience that corporations transfixed with revenue and profit oftentimes will only address and focus on doing the right thing if they, as private entities, are held legally accountable for specific damage and its resulting financial expense.

Advances in climate change scientific endeavors will only serve to bolster these civil climate change claims and support the victim’s right for justice. Existing legal causes of action stand ready to be applied in these matters. Longstanding rules of evidence and court procedure will apply.

Fossil fuel companies, those who have made unfathomable amounts of money as carbon producers, must be held accountable for their actions, which are being shown to be unconscionable at best and duplicitous and fraudulent at worst.

“At WigRum, we all share a passionate dedication to our Texas heritage. We love the Lone Star State, and we believe corporate profiteers must not be allowed to continue their heartless contempt for our environment as they strive to maximize their profits.” – Jeff Wigington

If we can be of help to you or your loved ones, or if you are an attorney or law firm with questions or concerns about a climate change issue, please feel free to contact Jeff Wigington (jeffreylaw@wigrum.com) at your convenience.

For more information on the continuing fight against climate change, see our articles on evolving news coverage of the issue including the following: