The oil industry was the first to face climate litigation, but depending on the outcome of jurisdictional battles in US courts, an increasing number of emission-intensive industries will face similar challenges in 2023.
For the last few years, there has been an ongoing debate in the United States about whether climate litigation cases should be heard in federal or state courts. However, after the Supreme Court brushed aside the issue in May 2021, a final decision is now expected in 2023. The decision, which could go either way, is expected to be guided by the views of the Solicitor General, who has been asked to comment on the matter.
The oil companies are fighting to keep the cases in federal court because they believe it will be more sympathetic to their case.
However, the plaintiff bar prefers that cases be heard in state courts, where they believe decisions will be more favorable to them. Claimants in these lawsuits are seeking funds to mitigate damage caused by climate change-related natural disasters or to implement preventative measures to mitigate future damage.
If the Supreme Court orders that the cases be heard in state courts, this will likely feed the plaintiff bar and lead to additional lawsuits against other industries. Automotive companies, particularly in the United States and Germany, cement manufacturers, and, increasingly, architects, engineers, and others in the construction industry, are all receiving increased attention. Building and construction account for 40% of global carbon emissions, and litigants expect the industry to improve its processes and make buildings more sustainable. Other apparent targets include the plastics and food industries.
Whatever the outcome, businesses will face increasing pressure to address climate change issues.