Having failed to convince the voting public about the merits of its campaign against fossil fuels, the climate movement is now turning to the courts to enforce its agenda.
And to support this effort, millions of dollars are now flowing through liberal charities and nonprofit groups to pay lawyers to prosecute these cases.
States, cities, and counties, including California, New Jersey, Maine, New York City, Chicago, and Honolulu have made a variety of damage claims, including that oil companies violated consumer protection laws, deceived the public about their role in climate change, created a public nuisance, and—in a case brought by teenagers in Montana—violated children’s rights to a “clean and healthful environment.”
Simultaneously, states such as New York and Vermont have passed laws that establish “climate superfunds” that would be financed through fines they seek to impose on oil companies.
“What you’re seeing is a concerted effort across the states trying to use lawsuits and very specifically designed legislation to accomplish the Left’s ideological goals by taking disfavored products and industries and bankrupting them,” O.H. Skinner, an attorney and executive director of the Alliance for Consumers, a consumer advocacy group, told The Daily Signal. “The public nuisance climate change lawsuits and the superfund bills are really just confiscation bills against anybody who’s ever produced carbon.”
These cases represent a new front opened up by the climate movement following the failure to pass federal legislation like the Green New Deal, President Barack Obama’s carbon tax plan, and various efforts by the Biden administration to subsidize wind and solar energy and electric vehicles while setting what many are calling “punitive” emissions standards on fossil fuel plants and gas-fired cars. And they are well-funded by liberal donors.
The Capital Research Center, an investigative think tank that tracks the political spending of nonprofits, reported that much of this “legislation through litigation” had been financed by millions of dollars from tax-exempt philanthropic organizations, such as the New Venture Fund, a 501(c)(3) nonprofit managed by Arabella Advisors, a Washington, D.C.-based consulting company.
“There are also big philanthropic foundations that are funding this litigation campaign, and you can see that through their grant descriptions,” Robert Stilson, senior research analyst at the Capital Research Center, told The Daily Signal. “If you’re a plaintiff in one of these cases, what’s the downside for you?”
Since the legal costs are paid by charities, he said, it costs municipalities very little to sue oil companies, and they have the potential for a lucrative payout if they can find a sympathetic judge.
Lawfare is a term derived from “legal warfare,” and according to Capital Research’s report on climate lawfare financing, other major charities that are funding climate lawfare include the MacArthur Foundation ($9 million since 2017) and the JPB Foundation, since renamed the Freedom Together Foundation, ($3.3 million from 2020 to 2022).The movement is also receiving hundreds of thousands of dollars from the Hewlett Foundation, the Rockefeller Brothers Fund, and the Gordon and Betty Moore Foundation.
According to Capital Research’s report, many of these payments were routed through the Collective Action Fund for Accountability, Resilience, and Adaptation, which, according to its grant descriptions, works to “enable cities, counties, and states hard hit by climate change to file high-impact climate damage and deception lawsuits represented by expert counsel.”
A 2024 Fox News investigation of the tax filings of charities reported that the New Venture Fund gave $2.5 million in 2022 to Sher Edling, a for-profit law firm in California that, according to its website, “represents cities, counties, and states in lawsuits to hold fossil fuel industry defendants accountable for their decades-long campaigns of deception about the science of climate change and the role their products play in causing it.”
A number of states have started to push back against these efforts, however.
On Feb. 6, attorneys general from 22 states sued New York over its Climate Change Superfund Act for attempting to “seize control over the makeup of America’s energy industry.”
“These energy producers needn’t operate in New York before becoming a target,” nor will New Yorkers pay the bulk of the costs, the state attorneys general said in their complaint. “Rather, New York intends to wring funds from producers and consumers in other states to subsidize certain New York-based ‘infrastructure’ projects.”
These projects include a new sewer system for New York City, the attorneys general charged.
“The New York law is unconstitutional because it violates the commerce clause; it’s unconstitutional because it violates the supremacy clause,” West Virginia Attorney General John McCuskey, who led the effort, told The Daily Signal. “It’s so obviously egregious and beyond the pale of common sense that it needed to be pushed back on.”
The commerce clause of the Constitution gives Congress the power to regulate trade among the states. The supremacy clause dictates that federal law takes precedence over state law when they conflict.
In May 2024, attorneys general from 19 states petitioned the Supreme Court, arguing that states like California, Connecticut, Minnesota, New Jersey, and Rhode Island were attempting “to dictate the future of the American energy industry … not by influencing federal legislation or by petitioning federal agencies, but by imposing ruinous liability and coercive remedies on energy companies.”
Climate lawsuits, given their proliferation across the U.S., are succeeding in driving up legal costs for energy companies, but to date, they have not won the enormous payouts they are seeking.
“These oil companies have been spending millions and millions of dollars defending against all these cases, so to that extent, the ideological goals of the environmentalists are being met, because they are increasing the costs for these companies,” Kenny Stein, director of policy for the Institute for Energy Research, told The Daily Signal.
“But the cases have been failing, and I think they will continue to fail,” he said. “The legal justification for all these things was very tenuous to begin with.”
On Jan. 14, New York State Supreme Court Justice Anar Patel dismissed a New York City lawsuit against ExxonMobil, BP, and Shell that claimed the defendants misled the public about the companies’ commitment to renewable energy. The judge expressed skepticism about the city’s claims that its residents were “climate conscious” regarding the role of fossil fuels in warming the globe while also claiming they were duped by oil companies.
“The city cannot have it both ways,” Patel stated.
More broadly, judges even in blue states have thus far ruled that individual municipalities lack the authority to dictate national energy policy in this way.
On Feb. 5, New Jersey State Superior Court Judge Douglas Hurd dismissed charges brought by the state against Chevron, ConocoPhillips, Phillips 66, Shell, and the American Petroleum Institute that said the companies conducted a “disinformation campaign to discredit the scientific consensus on climate change” and created “doubts in the minds of consumers” about climate change.
Hurd ruled that climate change was a global issue and local attempts to dictate solutions were preempted by federal law.
“It would be one thing if blue states were trying to just ban products in those states and make their own consumers’ lives worse,” Skinner from the Alliance for Consumers said. “That is bad, but it is not far off from what they’ve been doing for a decade.”
But climate lawsuits also punish oil companies for emissions in other states, he said.
“They’re about inflicting such a massive scale of financial harm on disfavored industries and doing so by citing what those industries are doing in Texas, Oklahoma, and Kansas because of climate change,” Skinner said. “It’s important for people to realize that if a case is allowed to go against an oil company, then the same theory will be applied to the auto manufacturers or to the farmer who has cows that emit too much methane.”
Critics of climate lawfare argue that the suits would result in a wealth transfer from states that are not suing oil companies and that blue states have benefited from fossil fuels and continue to use them as essential inputs to their economies.
“It doesn’t feel like West Virginia should bear the burden to balance New York’s budget, especially when you consider that the skyscrapers and the penthouses that the people who are trying to enact this legislation are sitting in were built with the steel that was made with the coal and the gas from here in West Virginia,” McCuskey said.
Meanwhile, the climate lawsuits continue to proliferate. Sher Edling reports that there are currently 26 pending cases from state and local governments that have brought climate damage and deception lawsuits.
And several recent court decisions appear to have lent them support.
On Jan. 13, the U.S. Supreme Court allowed a Honolulu lawsuit against Sunoco, ExxonMobil, BP, Shell, ConocoPhillips, BHP, Marathon, and Chevron to proceed. The suit sought damages for rising temperatures and “extreme weather,” including heat waves that the city claimed stressed its electrical grid as well as rising sea levels that required a wastewater treatment plant to be retrofitted at a cost of hundreds of millions of dollars.
Federal appeals courts have also denied motions by oil company defendants to have the lawsuits against them heard in federal versus state courts, often leaving them at the mercy of left-leaning jurisdictions.
Legal experts say, however, these were largely procedural wins for climate activists and don’t speak to the merits of the cases. But some judges are also ruling that predictions of natural catastrophe resulting from carbon dioxide emissions are convincing evidence of harm, lending support to the claims of climate plaintiffs.
In December, Montana’s state Supreme Court ruled in favor of a group of 16 minors that their rights to a “clean and healthful environment” were being violated by state laws that facilitated oil and gas exploration.
“Projections indicate that under a business-as-usual emissions scenario, Montana will see almost 10 additional degrees of warming by 2100 compared to temperatures in 2000,” Chief Justice Mike McGrath stated, writing for the 6-1 majority. “By 2050, Montana will have 11-30 additional days per year with temperatures exceeding 90 degrees and a similar loss of days below freezing.”
The tide among voters, however, appears to be turning against the climate movement, with Americans electing President Donald Trump by a significant margin after he pledged to increase fossil fuel production and with wind and solar energy failing to provide a reliable, affordable alternative.
“The Left has decided that they believe nonviable energy sources can replace fossil fuels faster than is rational,” McCuskey said. “The Left is either unaware or don’t care that American families’ energy costs are skyrocketing. And we have to get a handle on our ability to provide low-cost, efficient, and reliable electricity to every American family.”
Arabella Advisors responded to a request for comment, stating, “Arabella Advisors is a business that provides back-office support services, such as accounting and human resources, to nonprofit organizations, including New Venture Fund” and directing The Daily Signal to contact New Venture Fund for further information.
When reached for comment, the Gordon and Betty Moore Foundation responded, “By [and] large, our work is not focused on climate change mitigation related to emissions from oil and gas. However, we do care about adaptation and resilience tied to ecosystems.”
The Daily Signal also contacted the New Venture Fund, Sher Edling, the MacArthur Foundation, the Freedom Together Foundation, the Hewlett Foundation, and the Rockefeller Brothers Fund for comments regarding this article but did not receive a response by time of publication.
This article was originally published at www.dailysignal.com
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