Climate change litigation against fossil fuel companies: a contextual analysis

Abstract Over 70% of all historical CO 2 emissions are attributable to the 78 largest fossil fuel corporations and state-owned entities; however, only 5.7% of all climate court cases have been filed against these very companies. While scholars have analysed individual court cases and some have provided an overview of different cases, there is a lack of information on trends in private climate litigation (PCL) against fossil fuel companies across different geographies in terms of arguments used and success rates. Hence, this paper asks: How do spatio-contextual factors in private climate litigation against fossil fuel corporations contribute to leaving fossil fuels underground? Using a mixed-methods research approach (systematic literature review, interviews, a case study of cases against fossil fuel companies, and mapping), we conclude that: (i) the arguments used in the 173 PCL cases can be clustered into 9 categories; (ii) yearly PCL cases have seen steady growth after the 2015 Paris Agreement; (iii) corporate misconduct/deception has been cited most often as an argument, followed by civil liability, specific non-compliance with treaties and national legislation, breach of procedural norms, and human rights. (We also see an increasing number of cases where shareholders (mostly in the U.S.) are filing cases against investors, arguing that investing in fossil fuel is a breach of fiduciary duty); (iv) although most cases are filed in the U.S., the percentage of cases against fossil fuel companies there is the lowest; (v) Europe has seen the most influential wins – in national courts, but also at the International Court of Justice located in the Hague. U.S. cases have been relatively less successful for plaintiffs and face counter-litigation; (vi) The presence of national laws, such as the Duty of Vigilance Law in France and the Queensland Human Rights Act of 2017 helps plaintiffs to support their arguments. In showing how court cases are developing across different jurisdictions we are hoping to enhance understanding of the role of the courts in implementing the Climate Change Treaty regime.