Former Vice President Joe Biden’s victory in the race for the White House could have major implications for the climate litigation campaign as he vowed during the campaign to support these lawsuits as president and he’s already under pressure from environmental activist groups to make good on that pledge.
To date, every climate lawsuit that’s been decided on its merits – the cities of San Francisco and Oakland and New York City along with the New York Attorney General and Juliana v. United States – has ended in a comprehensive defeat for the plaintiffs. In fact, the only thing the New York Attorney General’s case proved was that the “Exxon Knew” theory was complete bunk. Still, dozens of lawsuits remain outstanding, with at least one set to be heard by the U.S. Supreme Court next year.
So, what exactly will the next administration mean for the future of climate litigation? A review of the campaign’ platform and chatter by activist groups gives us a few clues, including potential legal and political hurdles.
Administration Will “Strategically Support” Climate Lawsuits
In July, Biden introduced his “Plan To Secure Environmental Justice And Equitable Economic Opportunity” that, tucked away among a host of other priorities, included a single line in support of climate lawsuits:
“In line with the new Division’s mandate, Biden will instruct the Attorney General to: (i) implement, to the extent possible by executive action, Senator Booker’s Environmental Justice Act of 2019; (ii) increase enforcement, in line with the commitments already detailed in the Biden Plan; (iii) strategically support ongoing plaintiff-driven climate litigation against polluters; (iv) address legacy pollution that includes real remedies to make communities safe, healthy, and whole; and (v) work hand-in-hand with EPA’s Office of Civil Rights.” (emphasis added)
Additionally, while the campaign’s climate plan does not make a specific reference to climate litigation, it does call on the Environmental Protection Agency and Justice Department to pursue pollution cases:
“Hold polluters accountable. Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has referred the fewest number of criminal anti-pollution cases to the Justice Department in 30 years. Allowing corporations to continue to pollute – affecting the health and safety of both their workers and surrounding communities – without consequences perpetuates an egregious abuse of power. Biden will direct his EPA and Justice Department to pursue these cases to the fullest extent permitted by law and, when needed, seek additional legislation as needed to hold corporate executives personally accountable – including jail time where merited.” (emphasis added)
Climate Litigation Activists Want A Friend in the White House
Environmental activist groups wasted little time after Biden was declared the winner, quickly calling for his administration to drive aggressive climate action. Richard Wiles, the Executive Director for the Center for Climate Integrity, issued a statement urging the incoming administration to support the climate lawsuits he and his organization push for:
“Once he enters office, President-elect Biden must follow-through on that pledge and support legal actions, investigations, and other efforts to hold oil and gas companies, and their executives, accountable for causing and lying about the climate crisis.”
CCI and the litigation campaign it directs, Pay Up Climate Polluters, has played a leading role in many of the recently filed lawsuits. An EID Climate review of key documents in the City of Hoboken, N.J.’s case found that the Institute for Governance and Sustainable Development – the parent organization of the CCI and Pay Up Climate Polluters – is actually paying for the initial legal costs for the lawsuit. CCI is also closely connected to the lawsuits filed by the City of Charleston, S.C. and the Connecticut Attorney General.
350.org is another major activist group that’s already pushing Biden to use legal tactics against fossil fuel companies. The group tweeted out that “We’re going to make sure we hold Biden accountable” and linked to a list of “10 Executive Actions Biden Can Make for the Climate on Day 1” which included: “Investigate and prosecute fossil fuel polluters.”
350.org has also played a major role in the climate litigation campaign. Representatives from the group were at the infamous January 2016 meeting at the Rockefeller Family Fund and Rockefeller Brothers Fund headquarters in New York where activists laid out a plan to “delegitimize” ExxonMobil. Additionally, like Pay Up Climate Polluters, 350.org is financially supported by various Rockefeller funds – the constellation of groups that have manufactured the entire climate litigation campaign.
Bloomberg Law recently reported that allies of the climate litigation campaign in state attorneys general offices are optimistic they’ll have support from the Biden Administration for their cases:
“City and state officials suing Big Oil over climate change are eyeing President-elect Joe Biden’s victory as an advantage for their litigation. … To lawyers spearheading more than a dozen lawsuits against Exxon Mobil Corp., Chevron Corp., and others, it’s a welcome change from the Trump administration’s support for the industry in procedural fights that have played out so far.
“‘We look forward to an administration that is willing to stand up to polluters rather than shield them from liability, and that will support efforts here in Rhode Island and all around the country to address climate change,’ said Kristy DosReis, a spokesperson for the [Rhode Island} state attorney general’s office, which sued 21 major fossil fuel companies in 2018.’”
After Biden’s Environmental Justice plan was introduced this summer, Ama R. Francis, a fellow at the Sabin Center for Climate Change Law at Columbia University, told Bloomberg Law that his administration would be good news for the climate litigation campaign:
“This is perhaps an opportunity for the federal government to side with the people that the federal government serves instead of industry.”
Support for this plan from the Sabin Center is significant as the Executive Director, Michael Burger, has been a longtime supporter for public nuisance cases and has even take a position at the plaintiffs’ firm Sher Edling – which is the lead outside counsel for multiple lawsuits. Previously, Burger has filed amicus briefs in support of the lawsuits introduce by San Francisco and Oakland, Baltimore, and San Mateo.
Should We Expect Concrete Action?
It’s difficult to tell exactly how much effort the next administration will put into supporting the climate litigation campaign. In his victory speech, Biden mentioned voters had given him a mandate to act on climate in general but he didn’t specifically cite lawsuits. But a campaign official wouldn’t offer specifics after the Environmental Justice plan was introduced in the summer, according to Bloomberg Law:
“Biden’s campaign doesn’t have specifics about how he would ‘strategically support’ plaintiff-driven climate litigation beyond what the candidate has said on the debate stage, a spokesman said.”
Even if the next administration is willing to publicly support the lawsuits, it may face legal hurdles as Bloomberg Intelligence analyst Brandon Barnes noted:
“The only real way to move the needle would be to change the law somehow to create that liability, and that’s Congress.”
This lack of concrete ideas and statutory hurdles, combined with the fact that many activist groups have had a hot-and-cold relationship with Biden, signals there is still uncertainty over how aggressive the next administration will approach climate lawsuits targeting energy companies.
