Although climate change litigation is becoming more common, these examples do serve to illustrate how difficult it will be to succeed.
The complications inherent to climate change litigation occur in part due to the length of time between the extraction of oil and gas from the ground, performed by any given fossil fuel company, and the actual use of these fuels, which results in GHG emissions. This gap makes it hard to attribute any particular emissions to any particular fossil fuel company. The closest comparison and the area of law that is most often referred to when devising a strategy for climate change litigation, is tobacco litigation.
Before tobacco litigation started to succeed, the arguments against it were similar: How can we closely connect the sale of tobacco to smoking and eventual negative health results for any individual person? How can we prove that it was this company’s cigarettes that led to the damages?
Throughout the numerous attempts at tobacco litigation, plaintiffs eventually argued that tobacco companies knowingly misled and downplayed the negative health effects associated with smoking, thereby resulting in increased rates of cancer, heart disease, and other health problems. These cases were ground-breaking and have paved the way for future litigation, including climate change litigation. Yet, we need to recognize that it is still significantly more difficult to connect a particular company’s fossil fuel extraction to any specific effect of climate change, in large part because the oil taken out of the ground is not as clearly branded as cigarette packages and cannot be as easily traced to individual users.
An interesting development for future climate change litigation are new studies (here and here) which have connected some of the effects of climate change to specific energy companies. These studies use models to determine which fossil fuel companies are responsible for the majority of climate change effects and divide the effects up by percentage. For example, one report found that only about 90 companies are responsible for nearly two-thirds of historical greenhouse gas emissions. This study, and others like it, will be helpful in determining the outcome of climate change lawsuits because they can help determine what damages each of these individual companies would be responsible for and could help to allocate liability according to their degrees of responsibility.
 Urgenda, “Latest Developments” (9 October 2018) online: https://www.urgenda.nl/en/themas/climate-case/; Urgenda, Press Release, “State must achieve higher reduction in greenhouse gas emissions in short term” (9 October 2018) de Rechtspraak online: https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Den-Haag/Nieuws/Paginas/State-must-achieve-higher-reduction-in-greenhouse-gas-emissions-in-short-term.aspx.
 THE STATE OF THE NETHERLANDS (MINISTRY OF ECONOMIC AFFAIRS AND CLIMATE POLICY) v STICHTING URGENDA, 19/00135 (Engels) (20 December 2019) online: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007.
 Ingrid Peritz, “Quebec group sues federal government over climate change” (27 November 2018) The Globe and Mail online: https://www.theglobeandmail.com/canada/article-quebec-group-sues-federal-government-over-climate-change/.
 Environnement Jeunesse, “ENvironnement JEUnesses vs Canada” online: https://enjeu.qc.ca/justice-eng/.
 Our Children’s Trust, “Juliana v. U.S. – Climate Lawsuit” online: https://www.ourchildrenstrust.org/us/federal-lawsuit/.
 Our Children’s Trust, “Juliana v. U.S. – Climate Lawsuit”.
 Juliana v United States, 9th District Court of Oregon (17 January 2020) online: http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf.
 Our Children’s Trust, Press Release, “Decision of Divided Ninth Circuit Court of Appeals Finds Primarily for Juliana Plaintiffs, but Holds Federal Judiciary Can Do Nothing to Stop the U.S. Government in Causing Climate Change and Harming Children” (17 January 2020) online: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5e22508873d1bc4c30fad90d/1579307146820/Juliana+Press+Release+1-17-20.pdf.
 Gary McWilliams, “California cities sue big oil firms over climate change” (20 September 2017) Reuters online: https://www.reuters.com/article/legal-us-usa-oil-climatesuits/california-cities-sue-big-oil-firms-over-climate-change-idUSKCN1BV2QM.
 Nicholas Kusnetz, “New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest” (11 January 2018) Inside Climate News online: https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio.
 Tom DiChristopher, “Judge throws out New York City’s climate change lawsuit against 5 major oil companies” (19 July 2018) CNBC News online: https://www.cnbc.com/2018/07/19/judge-tosses-nycs-climate-change-lawsuit-against-5-big-oil-companies.html.
 Martin Olszynski, Sharon Mascher & Meinhard Dolle, “From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability” (2017) Georgetown Envtl L Rev 30:1.
 B Ekwurzel, The rise in global atmosphere CO2, surface temperature, and sea level from emissions traced to major carbon producers (October 2017) 144:4 Climatic Change 579-590; Nicholas Kusnetz, “How 90 Big Companies Helped Fuel Climate Change: Study Breaks it Down” (11 September 2017) Inside Climate News online: https://insideclimatenews.org/news/09112017/climate-change-sea-level-rise-fossil-fuel-exxon-chevron-bp-study.
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