In 1998, researchers at Shell wrote a memo in which they predicted a series of devastating storms in the year 2010. The storms would ravage the East Coast of the United States, the memo suggested, and would be followed by a series of class-action lawsuits “against the U.S. government and fossil-fuel companies on the grounds of neglecting what scientists (including their own) have been saying for years: that something must be done.” The memo predicted that “young consumers, especially” would “demand action.”
The memo was startlingly prescient, and the fact that it was generated by a fossil fuel company adds a layer of irony. It is part of a trove of company documents recently made public by the Dutch journalism outlet De Correspondent. The storm, Hurricane Sandy, did come in 2012, and so too have the lawsuits, some of them filed by plaintiffs under the age of 21, such as the Juliana vs. United States suit, which pits 21 young Americans against the Trump administration, alleging that the U.S. government failed to prevent and in fact encouraged the production and sale of fossil fuels that, when burned, are the primary drivers of climate change.
But the United States is not the sole nexus of this climate litigation. Last week, Colombia’s top court ordered the government to take action to prevent deforestation and protect the Amazon rainforest. This action will also help curb climate change: Forests take the carbon dioxide that is responsible for climate change out of Earth’s atmosphere, and the activities that take place during and after deforestation add more of the gas to the atmosphere, accelerating climate change.
The Colombian lawsuit was filed by a group of plaintiffs who ranged in age from 7 to 26, and who argued that the government’s failure to take action had infringed upon their constitutional rights to a safe and healthy environment — one of the legal theories that also underlies suits in the United States. The judge also recognized the Amazon rainforest as an “entity subject of rights,” which means the ecosystem is granted the same rights as a human being.
The suit is part of a growing wave of climate-related litigation that has emerged in recent years and that, plaintiffs say, is bolstered by the ongoing disclosures about what fossil fuel corporations knew about the dangers their products pose and when they knew it. In addition to suits by young plaintiffs — such as the Juliana suit against the U.S. federal government and similar suits in individual states, as well as the Colombian suit — U.S. cities, including New York and San Francisco, are filing suits. Paris is expected to soon join them.
And courts have recognized suits that cross transnational boundaries. For instance, in November, a German court allowed a suit by a Peruvian farmer against the German electric utility RWE to move forward. The farmer argued that climate change, driven in part by RWE’s power plants, contribute to glacial melt that is threatening his home in the Andes.
These suits are expected to grow in number in the years ahead, and are often likened to tobacco litigation in which various legal strategies were tried out by various plaintiffs over decades, ultimately resulting in a multibillion dollar settlement. It remains unclear which of these suits, and which of the underlying legal strategies, will prevail. (It is difficult, for instance, to imagine the U.S. Supreme Court, with its current makeup, upholding a legal challenge of this kind against fossil fuel companies or the U.S. government.) But last week’s victory by 26 young Colombians shows incremental progress in litigation of a kind that, as Shell predicted in 1998, will likely become much more common in the future.