Exxon knew. That was the takeaway from a trove of internal documents from the oil giant that reporters for InsideClimate News and the Los Angeles Times unearthed in 2015. The investigations showed that ExxonMobil understood, from its own research, the potentially catastrophic effects of climate change as early as 1977, yet helped to manufacture doubt about climate science in public. The investigations amplified a question the climate movement was already asking: Could Exxon be held accountable for climate change and spreading misinformation about it, much as tobacco companies had been for their efforts to conceal research on smoking and cancer?
Not this week, anyway. On Tuesday, the first climate change case against a major oil company to go to trial ended with a ruling in Exxon’s favor. The case was initiated by former New York Attorney General Eric Schneiderman, who subpoenaed Exxon for financial records and other documents shortly after the 2015 news reports broke. Officially filed in 2018, the case was a narrow one, shaped to fit the contours of the Martin Act, a state anti-fraud law. The state accused Exxon of misleading investors in its calculations of the costs that potential climate regulation could pose to its business. Specifically, the lawsuit alleged that the cost of carbon Exxon told investors its calculations were based on was higher than the estimate used in the company’s internal economic models. As a result, according to the lawsuit, Exxon “create[d] the illusion that it had fully considered the risks of climate change regulation and it had factored those risks into its business operations.” The discrepancy “exposed the company to greater risk from climate change regulation than investors were led to believe.”
The Martin Act gives the state attorney general broad powers to investigate corporations, and as a result Exxon was forced to turn over millions of pages of internal documents, which showed, among other things, that former CEO Rex Tillerson used a “shadow” e-mail account under a fake name to communicate about climate change and related business risks. But to win the case, the attorney general had to prove not only that Exxon made false statements in its public disclosures to shareholders, but also that those statements would have been considered important by investors when making decisions about buying and selling stock. The judge, Barry Ostrager, ruled that the state failed to provide sufficient evidence on both counts.
While Exxon claimed the ruling as a kind of vindication, the company is hardly off the hook.
More than a dozen other lawsuits are pending against Exxon and other fossil fuel companies, including Chevron and BP, many of them seeking compensation for climate damage. Because the New York case was so particular to the Martin Act, its outcome may not have any bearing on those other cases, most of which involve entirely different laws and facts. Michael Burger, the executive director of the Sabin Center for Climate Change Law at Columbia University, described the ruling as “a narrow decision on a specific claim about a particular set of non-required statements Exxon made a few years ago.” Ostrager himself noted the limitations of his opinion, writing, “Nothing in this opinion is intended to absolve Exxon Mobil from responsibility for contributing to climate change in the production of its fossil fuel products. But Exxon Mobil is in the business of producing energy, and this is a securities fraud case, not a climate change case.”
Of the other cases pending against Exxon, the most similar is a fraud case filed by the Massachusetts attorney general. But that lawsuit is broader, accusing Exxon of deceiving consumers as well as shareholders. And most of the other climate lawsuits take a completely different approach. Filed by number of cities and counties facing climate change impacts from extreme heat to flooding, as well as the state of Rhode Island, these suits allege that a group of multinational oil and gas companies created a “public nuisance” by selling products that they knew were damaging to human health and the environment. The plaintiffs want companies to pay some of the cost of dealing with climate change—for instance, building seawalls to protect coastal communities from rising sea levels. In November, the Supreme Court rejected a bid from Exxon and more than two dozen other energy companies to block one such lawsuit filed by Baltimore.
“The nuisance cases have the potential to wreak far more havoc on oil companies because the potential for liability reaches into the billions of dollars,” said Ann Carlson, a professor of environmental law at UCLA. “And if one or more jurisdictions prevail, we are likely to see many other cities, counties, and states file similar suits to recover damages for climate change impacts that are already occurring and that will occur in the future.” Carlson, who has consulted for some of the municipalities in the nuisance cases, thinks the ruling in New York will have little to no bearing on those suits. “The nuisance cases involve oil company knowledge about climate change, deception about that knowledge, and damage caused by the extraction and burning of fossil fuels. The New York case was based on an entirely different theory and set of facts about how to assess climate change risk in valuing oil company investments.”
Climate litigation is still in its infancy—and it is only one arm of the multipronged climate movement, which is applying pressure to political and financial systems in addition to the courts. Already the various lawsuits have sent ripples outside the courtroom, fueling a broader accountability movement. Kids and teens in the United States and in other countries have sued their governments for violating their rights by supporting the fossil fuel industry and allowing climate change to escalate, largely unchecked; the US government’s requests to dismiss Juliana v. United States, a federal suit filed by young people in 2015, have been repeatedly denied, but the case has yet to go to trial. Democratic presidential candidates Bernie Sanders and Elizabeth Warren have both called for holding fossil fuel executives criminally liable for environmental damage. Judging by the history of the litigation against Big Tobacco, which spanned two decades and involved numerous defeats, it could take many years and new legal strategies before this accountability effort yields significant legal victories. If the New York ruling has a broader implication, it is that securities fraud may not be the most effective vehicle for holding fossil fuel companies accountable for climate change—not that it can’t be done.