Making private companies pay their share for climate change: a new study could revive climate change litigation

by David Hunter

November 26, 2013

Efforts to hold private companies responsible for their contribution to climate change just took a big step forward, thanks to researcher Rick Heede.  For the past eight years, Heede has painstakingly compiled the historical contribution of fossil fuel companies to today’s concentrations of greenhouse gases.  According to Heede’s study ”Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010,” which was published in Climatic Change, just 90 enterprises have accounted for over sixty percent of total industrial carbon dioxide and methane emissions.  And just five private oil companies-- ChevronTexaco, ExxonMobil, BP, Shell and ConocoPhillips—have accounted for more than 12 percent of such emissions.

This data is a potential game-changer in how we think of responsibility for climate change.  The fossil fuel industry would like us to believe that we are all equally culpable every time we turn on an ignition or a light bulb.  But we are not all equally responsible for decisions that have led to climate change—and we certainly have not all benefited from climate change the same way that the five oil companies have.  In addition, several of the top emissions contributors actively promoted climate change denial campaigns.

This data is legally significant as well because it gives courts a fair and defensible way for allocating responsibility for damages caused by climate change.  Courts need no longer fear that it would be impossible to untangle the private sector’s historical contributions to climate change or unfair to make oil companies, for example, pay for all climate-related damages.  A clear formula now exists for allocating at least a significant percentage of the costs of climate change to those companies that benefited most from the public nuisance created by their emissions.  Take, for example, the costs of moving the Inuit village of Kivalina, which attempted to sue several of the top polluters for the anticipated costs of relocating their village as a result of climate change.  Those costs could now be allocated to the major fossil fuel companies based on their historical contributions to the problem.   

Heede’s report should also expand our focus in international negotiations from nation states’ contributions to include contributions of the private sector.  ChevronTexaco and ExxonMobil each represent more than 3 percent of total industrial carbon dioxide and methane emissions.  If they were countries, their emissions would rank them 7th and 8th, respectively, in historical emissions.  The climate negotiators meeting in Warsaw struggled to find public financing to pay for developing country mitigation and adaptation costs, maybe they should look directly to these private corporations that have benefited most from climate change.  Similarly, the difficult negotiations over who should pay for damage and loss from climate change, which sparked a developing country walk-out in Warsaw this week, might make better progress if negotiators aimed their sights on creating a liability regime that held private parties responsible for damages (like the liability regime for oil spills, for example).  Now, at least, we know how much each company should contribute!



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Also from David Hunter

David Hunter is a Professor of Law and Director of the International Legal Studies Program at American University, Washington College of Law, and Director of the Washington Summer Session on Environmental Law.

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