Suing Big Oil

An unprecedented storm hit Vermont in July 2023, leading to some of the worst flooding in the state’s history and causing two deaths and billions of dollars in damages. Less than a year later, in May 2024, Vermont passed a bipartisan law that will charge fossil fuel companies for their role in the damage they cause through climate change.

The law has not gone unnoticed by the oil industry. Dana Drugmand, an environmental journalist and founder of the website Climate in the Courts, notes that “several industry groups, along with 24 Republican-led states, and additionally the Trump administration” are challenging the Vermont law. Drugand writes extensively concerning legal actions against fossil fuel companies that have long denied that their products pollute the environment.

The Vermont measure is one of a series of laws and lawsuits by states, cities, and Tribal governments that seek to hold Big Oil accountable. The usual suspects — Exxon Mobil, Chevron, BP, ConocoPhillips, Sunoco, Royal Dutch Shell, and many other firms along with the powerful oil lobby, the American Petroleum Institute (API) — are fighting these attempts. But it’s become clear that Big Oil knew their products directly intensified human-caused climate change, and that they didn’t tell us what their own science told them.

The Center for Climate Integrity tracks numerous lawsuits filed by states, municipalities, and Tribal governments that claim the fossil fuel industry knew in advance that their products would worsen costly climate-related catastrophes. The legal actions do not seek to prevent companies from producing fossil fuel but have the goal of making them financially accountable for the damage they have caused.

These legal actions hinge on how fossil fuel companies misled the public over the past 40 years and how this deception allows jurisdictions to use many legal civil and criminal tools: negligence, securities fraud, racketeering, property damage, and even personal injury, because of the public health costs involved. Leading the pack are Massachusetts, Vermont, Maine, and Rhode Island, as well as California and Hawaii. Maryland and several others have joined the fray. Many cities and counties have also filed suit. San Francisco and Oakland were rebuffed by a federal judge, as was Baltimore in state court. Baltimore is appealing the ruling in an action that began in 2018. Boulder, Colorado’s lawsuit is proceeding in state court, as is one in Honolulu County.

According to Drugmand of Climate in the Courts, several cases in New England “are now closer to getting to trial,” and “implementation of the Vermont law is underway.”

Stating Their Case

These cities, counties, and states claim that climate change, attributed in large part to fossil-fuel emissions, have vastly increased government costs involving public health and property damage. More and increasingly worse flooding, greater intense heat and hurricanes in the summer, powerful blizzards in winter, severe wildfires in the western United States and Canada, eroding coastlines along our shores, and more all create costs for governments at every level.

Fossil fuel companies and their lobbyists have long contended that climate change mimics the business cycle of growth and bust: It has its own cycles of temperate times and ice ages. They’ve argued that humans do not cause it and contend that we can do nothing to stop it. This despite the fact that climate scientists have found that the 10 hottest years in recorded history are the last 10, 2024 was the warmest year on record, and July 22, 2024, was the hottest day yet ever recorded on earth.

Lies, Damn Lies, and Oil Company Ads

Harvard science professors Geoffrey Supran and Naomi Oreskes looked into what oil companies knew versus what they told the public. They reviewed nearly 200 of ExxonMobil’s scientific papers, news releases, newspaper commentaries, and public addresses, and their findings show that although “the majority of ExxonMobil's peer-reviewed publications acknowledge that climate change is real and human-caused, and internal documents reflect this scientific framework,” their public statements continued to sow doubt, obfuscate, and deny these findings.

ExxonMobil denies that it misled the public. Though company officials acknowledge that climate change has occurred, they claim it has nothing to do with their operations and that the science is uncertain.

One ExxonMobil advertorial declared, “Let's face it: The science of climate change is too uncertain to mandate a plan of action that could plunge economies into turmoil…  Scientists cannot predict with certainty if temperatures will increase, by how much and where changes will occur. We still don't know what role man-made greenhouse gases might play in warming the planet.” But in an internal peer-reviewed scientific publication, company scientists wrote that “we humans are interacting with the geo-chemical systems of our planet on a global scale. The concentration of carbon dioxide in the atmosphere has increased by a third from its preindustrial level, and the resulting change in the acidity of the upper ocean can be detected.”

Fighting Back

Now states are on offense to force Big Oil to pay for the costs of human illness and property loss caused by fossil-fuel emissions. In 2015, then-Attorney General (now Governor) Maura Healey of Massachusetts investigated ExxonMobil, finding, “Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be held accountable.” In 2020, she amended the lawsuit that “highlights Exxon’s continued statements omitting, denying, and downplaying the risks that climate change poses to its business, as well as Exxon’s continued failure to disclose to investors the systemic financial risks from climate change.” The case is currently in pre-trial discovery.

Vermont's new law establishes “a Climate Superfund” allowing the state to sue “the biggest fossil fuel companies in the world to compensate Vermont for damage wrought by climate change.” The state attorney general can force ExxonMobil and Shell to cover costs to Vermont since 1995 “based on how much their products contributed to the problem globally.”

Cases are ongoing, and we can count on the losing side to appeal, perhaps all the way to the United States Supreme Court. In 2023, the Court denied hearing an appeal by Big Oil when it tried to halt litigation in five cases filed against it. As is typical, the Court gave no reason why it denied the appeals. Another major issue is jurisdictional: Should these cases be tried in state or federal court? The states and cities believe they have a better chance of winning in state court, whereas Big Oil advocates for trial in federal court. So far, when Big Oil attempts to move cases to federal court, judges return them to the state.

These cases face legal and political headwinds. After all, the United States is “the world’s unchallenged oil and gas behemoth.” No country in the world produces more of these two fossil fuels that contribute to climate change. While the jury is still out (as they say) insofar as these cases reaching final resolution, state and local legal actions have poked a deep hole in the veil Big Oil has placed over its own findings. James May, a distinguished professor of environmental law at Washburn University, told Climate in the Courts that the good news is that “it is inevitable that oil companies somewhere, somehow will be put on trial.”

Jack Fruchtman taught constitutional law and politics for over 40 years. The fourth edition of his book, The Supreme Court and Constitutional Law, was published in 2025.