Legal Responses to Climate Damage Claims by Oil Firms

December 30, 2021, arrived as a quiet, normal day in the Superior, Colorado, household of Erica Solove — except for all the ways in which the weather soon turned freakish.

Solove and her family were enjoying the sleepy time between Christmas and New Year’s, and as they sat down to lunch, she noticed that things outside looked strange. Half of the sky was a crystal, clear blue, but the other half was choked dark — a dust storm, she figured, or a fire somewhere off in the mountains. That December had been uncannily warm, with temperatures regularly 10 degrees above normal, which had left the wild grasslands surrounding her neighborhood dry and brittle. The ground was bare of snow — a strange sight for winter in a place located nearly a mile above sea level. The winds were gusting something fierce.

“I just didn’t think anything of it,” Solove remembers. “And then very suddenly I realized, ‘Oh, this fire is not off in the mountains — it’s right here.’”

She and her husband decided to bolt. They gathered up their five-year-old and their two-year-old and raced out of the house without any coats or wallets; her husband was the only one wearing shoes. The winds had accelerated to hurricane force, so strong she could barely open the car door.

“It just went from a very normal time to, like, complete run-for-your-life chaos,” Solove said. “I naively assumed [the local authorities] would get it under control.”

But the fire, driven by the intense windstorm, quickly did spin out of control. By the end of the day, the Solove house had burned to the ground — one of the roughly 1,100 homes incinerated in the community a short drive from the college town of Boulder. Two people died, and more than 37,000 residents were forced to evacuate. The Marshall Fire would come to rank as the most destructive wildfire in Colorado history, with at least $500 million in recorded damages.

The Marshall Fire is one in a string of similar extreme weather disasters — Paradise, Altadena, Asheville — that would have been all but impossible without global climate change. According to a report from the Union of Concerned Scientists, warming temperatures and reduced precipitation have intensified fires across the western United States. The report concludes that there’s a clear culprit: the coal, oil, and gas companies that continue to use the atmosphere as a dumping ground for their products’ carbon pollution.

Employing what’s called “attribution science,” the UCS analysis found that 37% of the forest area that has burned in western North America since 1986 can be traced to carbon emissions from the world’s 88 largest fossil fuel companies. “Emissions from the products of fossil fuel companies and cement manufacturers have fundamentally reshaped the climate of western North America and left behind a scarred, charred landscape,” the group reports.

The way Erica Solove sees it, the fossil fuel giants hold a measure of responsibility for the fire that destroyed her community.

“You know, we’re already paying, right? We’re paying with insurance premiums … and dipping into our life savings,” said Solove, who used to work in corporate HR but who, since the fire, has joined the staff of a national support group called Extreme Weather Survivors. “I would certainly think that anyone who contributed to the disaster should be liable for it, and that that burden should not be only on families.”

Solove’s local elected officials have the same point of view. In 2018 Boulder County, the city of Boulder, and San Miguel County filed a lawsuit in Colorado state court against ExxonMobil and the U.S. subsidiary of the Canadian oil firm Suncor demanding that the companies help cover the local governments’ climate change-related expenditures. “The costs should be shared by Exxon and the Suncor Defendants because they knowingly caused and contributed to the alteration of the climate by producing, promoting, refining, marketing and selling fossil fuels at levels that have caused and continue to cause climate change, while concealing and/or misrepresenting the dangers associated with fossil fuels’ intended use,” the Colorado governments’ lawsuit declared.

After years of legal wrangling and repeated appeals, the Colorado Supreme Court last year ruled that the Boulder-area cases can move toward trial. In a 5 to 2 decision, the state justices dismissed the oil companies’ arguments that federal law preempts the case and ordered the case to be heard in Colorado district court.

Now, however, the Colorado communities’ attempts at redress are in doubt.

In late February the U.S. Supreme court agreed to hear a petition by Exxon and Suncor to toss out the Boulder case and the many others like it. Faced with the prospect of being tried in court — and, if found guilty, suffering massive reputational damage and severe financial penalties — the fossil fuel giants and their political allies are waging a campaign to dodge any legal responsibility for climate-related destruction.

“These companies do not want the evidence of their climate deception to go before a jury,” said Mike Meno, communications director at the Center for Climate Integrity, a group that assists communities in demanding corporate accountability for global warming. “They do not want these cases to go to trial, and they will take any steps they can to stop that.”

At stake is whether communities like Boulder County — and, by extension, people like Erica Solove — will ever have a chance to demand justice for what many people say is among the greatest crimes in human history.

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The Colorado communities suing Exxon and Suncor are in good company. Since 2017, 11 states, the territory of Puerto Rico, and dozens of cities, counties, and Tribal governments have filed lawsuits against fossil fuel corporations that seek to recover climate-change costs.

The lawsuits take a variety of forms. A lawsuit brought by Hoboken, New Jersey, charges the fossil fuel giants with violating racketeering laws (essentially accusing them of acting like the mafia), while a recent suit in Michigan cites anti-trust laws (essentially accusing Big Oil of being a cartel).

But all the suits rest primarily on old-fashioned tort claims, arguing that the fossil fuel corporations deceived the public about the dangers of their products and therefore should pay some of the costs of those damages. At this point, according to the Center for Climate Integrity, 1 in 4 Americans lives in a jurisdiction that has sued the fossil fuel industry.

The scale of the alleged damages and the sweeping scope of the legal proceedings are often compared to the landmark litigation against Big Tobacco. In the 1990s dozens of state attorneys general sued cigarette makers for deception about the dangers of smoking, eventually securing a sweeping, $205 billion settlement. “This is very much like the tobacco litigation from 30 years ago, where each individual state said, ‘You cost our healthcare system a lot of money,’ and ultimately was so successful that every state signed on,” said Robert Percival, director of the environmental law program at the University of Maryland School of Law. “Those were straightforward tort claims under state law, and basically that’s what’s happening here.”

The comparison to Big Tobacco is unflattering to the fossil fuel giants and, unsurprisingly, they have fought a multiyear effort asking for the cases either to be dismissed or to be moved to federal courts, which they view as a more sympathetic venue.

Despite their vast army of lawyers, the oil companies have mostly suffered defeats. Multiple federal appellate courts have turned down their appeals. And on five separate occasions the U.S. Supreme Court has swatted away petitions to hear the matter, including as recently as January 2025, when the justices refused to review a decision by the Hawai‘i Supreme Court to let a Honolulu climate case to proceed in state court.

So why did the Supreme Court justices decide to hear the issue now?

Court watchers caution that reading Supreme Court tea leaves is tricky business, but they point to several possibilities for why the justices are taking the case. One is the growing effort by the fossil fuel industry’s political allies to short-circuit the litigation. Republican attorneys general from 19 states have asked the court to block the state and local suits. And in a highly unusual move, the Trump Department of Justice last year filed an unsolicited brief to the court in support of the oil companies’ position — very likely at the request of oil executives, who raised the issue with the president in an White House meeting in the spring of 2025, as The Wall Street Journal reported. The Trump administration’s brief marked a departure from the Biden administration’s position in support of the local climate lawsuits, perhaps giving the justices an opening to consider the issue.

Another possibility, which various reporters have raised, is that Justice Samuel Alito, an arch-conservative, provided a crucial swing vote. Four justices are required to hear a case, and Alito recused himself in the Hawai‘i decision, since he has significant investments in ConocoPhillips and the company was a primary defendant in the Honolulu case. Alito also recused himself in a 2023 appeal in the Boulder case that was virtually identical to the current case. But he did not recuse himself this time, and it likely made the difference.

Chief Justice Roberts “recently sent around a memo that gave the justices a little more leeway in deciding when to recuse themselves — it’s totally up to them,” Percival points out.

Significantly, Justice Amy Coney Barrett has never recused herself from a Supreme Court case, though when she was a circuit court judge she routinely stepped aside in cases involving Shell Oil, where her father worked as an attorney for 29 years; Shell is a defendant in many of the state and local climate lawsuits.

The justices will likely hear oral arguments sometime this coming fall. Given that four justices seem sympathetic to the fossil fuel industry’s arguments and that the industry now has the Department of Justice on its side, Big Oil would have good reason to be confident — except that the Trump administration just yanked away one of its most potent legal talking points.

Just one week before the Supreme Court agreed to consider the Colorado case, President Trump and Environmental Protection Agency Administrator Lee Zeldin announced that the federal government was rescinding what’s called the “endangerment finding,” the basis for the EPA’s authority to regulate carbon pollution under the Clean Air Act. The move was described as a “knockout punch” in conservative activists’ long crusade to halt federal climate action.

But when it comes to the legal wrangling over the tort cases, the repeal of the endangerment finding might turn out to more like the Trump administration shooting the oil and gas industry in the foot.

Oil and gas companies have long made the case that the state and local lawsuits are impermissible because they interfere with the federal government’s power to set climate policy and regulate air pollution. The plaintiffs say they have no intention of making climate policy; they simply want to recoup their costs from climate damages. Most courts have agreed. “The Energy Companies are arguing a case the Local Governments did not plead,” a Colorado circuit court ruled earlier in the appeals process. “The Local Governments are not attempting to litigate a policy solution to global climate change.” But the question of whether federal power preempts the state claims still dominates the legal back-and-forth. With the recission of the endangerment finding, the federal government is no longer in the business of climate regulation — and that has blown a hole in Big Oil’s legal reasoning.

“It’s a classic case of overreach by the Trump administration,” Percival said. “The defendants can’t make the case that the federal government is doing something on climate. They’ve made it almost impossible for the EPA to do that.”

Andres Restrepo, a senior attorney at the Sierra Club who is involved in the organization’s federal litigation, agrees that the recission of the endangerment finding has eroded the oil companies’ legal position. “I think the EPA has really put a lot of private industry in a bind with this said,” said Restrepo, who grew up in the Boulder area and who knows one childhood friend who lost a home in the Marshall Fire. “They have said we don’t believe we have authority under the Clean Air Act to do this, and I do not believe it’s possible to square that position with the idea that the tort lawsuits are preempted.”

There’s another reason why fossil fuel companies may not want to get too confident about winning the argument before the high court. In accepting the case, the justices explicitly asked the parties to address an additional question: whether the U.S. Supreme Court even has the jurisdiction to rule on these state cases, none of which have gone to trial, much less seen a verdict on their merits.

“The fact that [the justices] added this extra question on jurisdiction could very well suggest that they don’t actually think that this is the kind of thing that they can even pass judgment on,” Restrepo said.

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In case things don’t go according to plan and the Supreme Court rules in favor of the Boulder plaintiffs, the oil and gas companies have another play in the works. The fossil fuel giants are working at both state and federal levels to convince elected officials to pass laws that would provide them with immunity from any lawsuits. There’s a precedent for such legal immunity and — warning — it’s not pretty.

In 2005 Congress passed a law that shields gun manufacturers from any civil suits arising from the criminal misuse of firearms. That blanket immunity is why there has never been a lawsuit against the gunmakers in response to horrors like the mass murders at Sandy Hook Elementary, Parkland High School, or in Uvalde, Texas. If the local communities demanding redress for climate change damages are trying to repeat the historic campaign against Big Tobacco, the fossil fuel industry is hoping to replicate the experience of the powerful firearms sector.

During a January speech, the CEO and president of the American Petroleum Institute declared that stopping state climate lawsuits is among the trade group’s top priority for 2026. In February Republican Rep. Harriet Hageman of Wyoming told Attorney General Pam Bondi that she is “working with my colleagues in both the House and the Senate to craft legislation tackling” these lawsuits, which, she warned, “are now advancing toward trial.” Senator Ted Cruz, the Texas Republican, has expressed support for the idea. In a June 2025 letter to Bondi, 16 Republican state attorneys general echoed the call for a “liability shield” and described the state lawsuits as “lawfare against the energy industry.”

Meanwhile some states are pursuing their own immunity laws to protect the fossil fuel corporations. Lawmakers in Oklahoma and Utah have introduced bills in their respective legislatures that would bar most civil suits against oil companies. Such immunity laws pose “a threat to democracy,” former Washington governor and well-known climate hawk Jay Inslee told The Guardian. “The ultimate foundation of democracy is the American jury system.”

Law professor Robert Percival expressed less concern about the state-level immunity laws, pointing out that there are no city or county climate lawsuits in either Utah or Oklahoma and that any other immunity efforts would pop up in in red states where climate cases are unlikely to be filed. But Percival agreed that if the fossil fuel companies were to succeed in securing federal immunity, it would represent a major blow to principles of accountability and would ripple through American society.

“It would be an outrageous giveaway,” Percival said. “If you’re big enough and important enough and rich enough that you’re able to get Congress to insulate you from liability, it will just encourage more reckless behavior. We’re letting you off the hook, no matter how much you lied and tried to deceive the public.”

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The legal arcana and political machinations surrounding the climate change tort cases are so Byzantine that they sometimes cloud the fundamental question of justice at the heart of the lawsuits: Should coal, oil, and gas companies have to answer for their alleged crimes in a court of law?

For Erica Solove, the prospect of impunity boils down to a question of fairness.

“In very simple terms, I don’t think it’s fair,” she said. “If these companies knowingly created a product that contributed to the conditions that caused the [Marshall] fire, then it seems like at the very least they should not receive a get-out-of-jail-free card. We should have the opportunity to hear the evidence and have due process to understand what responsibility could or should be.”

She then asked, “And if the companies in question did nothing wrong, then why would they be aggressively fighting it?” Big Oil’s dogged campaign for immunity can seem like an implicit admission of guilt.

Justice delayed is, famously, justice denied. It’s been nearly a decade since the first climate change tort cases were filed. At this point it might well be another before the facts of the case are heard by a jury. American jurisprudence can be painfully slow. But it’s better than the alternative, which would be for the fossil fuel companies to walk away with impunity — either granted by Supreme Court fiat or greased by enablers in Congress. Such an outcome would be closer to justice decapitated.

https://therevelator.org/climate-change-damages/