Protesters gather at United Nations COP23 talks to protest fossil fuel useProtesters at the United Nations climate talks in Bonn, Germany take issue with fossil fuel companies' disregard for climate change. Photo credit: Sean Gallup/Getty Images

By Dana Drugmand

Research has boosted the concepts of climate liability and corporate accountability in recent years from pie-in-the-sky theories to plausible underpinnings for litigation. Now, a new report synthesizing this research concludes there is solid evidentiary basis for holding fossil fuel companies accountable for climate change.

The report by the Center for International Environmental Law (CIEL), released Thursday at the United Nations climate talks in Bonn, Germany, pulls together the studies and research of climate accountability and public deception and evaluates the evidence in the context of legal liability standards. Titled Smoke and Fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis, it details what the petroleum industry knew about climate change, when it knew it, and what it did with this knowledge.

“The knowledge these companies had about the nature of their product and what it would do to the climate is important for different concepts of legal responsibility,” said CIEL staff attorney Steven Feit, a co-author of the report.

Under tort and human rights law, the report explains, liability for harm depends on the defendant’s ability to foresee this harm, and also having the opportunity to minimize or avoid the harm. The report concludes that big oil and gas corporations satisfy both conditions of liability.

Petroleum companies were aware of the climate risk of their products in the 1950s, and by the late 1960s, the entire industry was unequivocally warned about the consequences of fossil fuel combustion on the climate. These companies could have warned consumers and the public and pursued low-emission or alternative energy technologies for which they held early patents. Instead, they doubled down on their petroleum production and engaged in an eventually well-documented campaign to mislead the public on climate science. At the same time, the companies internally acknowledged the climate risk and took initiatives to protect their own infrastructure from future damage.

“Insofar as industry is obliged to understand and act on the environmental and societal consequences of producing and marketing carbon fuels to global customers, this report underscores the failure of companies and trade associations to warn regulators and the public about the risks and damages from climate change that their own scientists saw coming with continued use of fossil fuels,” said Richard Heede of Climate Accountability Institute. “Damnably, oil company management was also warned, yet not only failed to act, but instead obfuscated and lied in order to assure uninterrupted profits at public and planetary expense. The report makes cogent legal and ethical arguments for the culpability of industry in knowingly destabilizing our climate.”

Heede authored a groundbreaking 2013 study finding that 90 companies were responsible for nearly two-thirds of carbon dioxide and methane emissions from 1854 to 2010. A September 2017 study by Heede and other researchers substantiated this finding and further tied the 90 “carbon majors” to specific percentage increases in global temperature, atmospheric CO2 levels, and sea level rise. These advances in attribution science have strengthened the causal chain linking large petroleum producers to a significant portion of carbon emissions and resulting climate impacts like rising seas and catastrophic storms.

Based on this research and extensive documentary evidence that the industry knew of the danger of its product and publically obfuscated this risk, the Smoke and Fumes report suggests that major carbon producers can and should be held responsible for the impacts of the climate crisis.

“Exxon and its oil industry allies have given us a decades-long history of climate change, climate denial, and climate chaos,” said Carroll Muffett, CIEL president and report co-author. “This report exposes that history and suggests that the future of these companies will be marked by climate litigation and climate accountability.”

Exxon, whose climate research has been the subject of extensive reporting, did not immediately respond to a request for comment.

Feit said he hopes that potential plaintiffs, attorneys, advocates and others look at this report and see there is a case to be brought. “We hope they look at this and say, here is the evidence, we can pursue a claim.”