Hundreds of climate change lawsuits are working their way through United States courts, using arguments grounded in several different legal theories: tort, fiduciary duty, securities laws and constitutional law. As a threshold matter, climate change tort claims must overcome displacement by the Clean Air Act, which preempts most tort claims. In the earliest rounds of climate change litigation, courts denied multiple claims because the Clean Air Act displaced them. To avoid this fate, plaintiffs’ attorneys argue state law claims such as nuisance, trespass, negligence and product liability, and demand redress that is outside the scope of the Clean Air Act.
Litigation founded on fiduciary duty claims aimed at publicly traded companies has forced them to defend their actions and disclosures to shareholders. Much like tobacco litigants, climate change plaintiffs’ attorneys adapt their tactics and shift strategies as they win or lose on different arguments. From 1986 to 2004, courts grappled with only 24 climate change related lawsuits. Since 2005, the number of claims filed each year has clicked steadily upward, from a low of 13 claims in 2006 to a recent high of 117 in 2016.
So far, plaintiffs have filed 45 cases this year. Even if the defendants prevail, they will face costs to defend these claims or countersue, potential exposure of sensitive internal documents that may directly contradict public statements, impact to stock prices and credit ratings, and damage to their goodwill and social license to operate.