United States of America

Climate Change Litigation in the US

Contents

    This section was last reviewed in January 2025.


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    Introduction

    In the US, the term “climate change litigation” generally refers to lawsuits that focus on the effects of climate change caused by human activity[1], seeking redress for resulting harms and injury, and/or to prevent or mitigate future injury and damage that may be caused by climate change.  Some common objectives of persons bringing climate change lawsuits include:

    1. To compel governments and private actors to undertake more ambitious climate change mitigation and adaptation measures;[2]
    2. To hold private organizations and corporations to account for their contribution to climate change and resulting effects on the environment; and
    3. Obtain monetary damages or other compensation for injury caused by climate change and the costs of adapting to climate change.

    Climate change litigation is a potentially significant avenue for injured persons and groups to seek redress for injuries caused by climate change, and to challenge insufficient government and private industry responses and efforts to arrest climate change and mitigate its harmful effects.[3]  A report published by the United Nations Environment Programme (UNEP) entitled Global Climate Litigation Report: 2023 Status Review, states that climate litigation  represents a “frontier” tool  for combatting the climate crisis and securing climate justice.[4]  UNEP reported  that the total number of climate change lawsuits filed globally more than doubled from 2017   (884 cases) to 2022 (2,180 cases).[5]

    The US has the highest number of climate change lawsuits globally with more than 1500 climate-related lawsuits as of 2023.[6]   Lawsuits in the US have raised novel claims and theories seeking to force government and industry to take more extensive and accelerated actions to mitigate climate change and its harmful effects. 

    Key cases

    Native Village of Kivalina v Exxon Mobil

    Ellis v. Nike USA, Inc.

    Berrin v. Delta Airlines, Inc.

    Connecticut v. Exxon Mobil Corp.

    City of New York v. Exxon Mobil  Corp.

    Vermont v. Exxon Mobil Corp.

    Held v. Montana

    Juliana v. United States

    Overview of climate change litigation in the U.S

    Climate change lawsuits brought in the United States have multiple different, and frequently overlapping, aims and objectives, including protection of human rights of non-parties.[7] To date, few US climate change lawsuits have proceeded to judgment on the merits of the claims, and many have been dismissed on justiciability or jurisdictional grounds.  Decisions in those cases and in the numerous cases that have not reached final decision together will shape the developing law and jurisprudence regarding climate change issues, litigation, rights, and remedies.

    Initially, climate change litigation in the US largely involved administrative law challenges to public policies, regulations and decisions made by government agencies and officials (e.g. permitting GHG emissions projects and activities) under environmental, zoning, land use, or planning regulations.[8]

    More recently, heightened awareness of the effects of climate change, a dearth of statutes and regulations directly addressing climate change, and limited redress available under those ill-fitting regulation have led to an increase in the development and pursuit of innovative legal claims and theories in climate change litigation.  These novel claims seek to compel government and private industry to undertake more ambitious and expeditious actions (including significant reductions in use of fossil fuels and other GHG-generating activities) to mitigate climate change, and compensation for injuries attributable to climate change.

    Today, climate change litigation in the US asserts a range of legal theories and seeks a variety of remedies to protect rights and interests affected by climate change. Pending climate change claims are based on federal environmental statutes and regulations (e.g., the Clean Air Act, Clean Water Act, the National Environmental Policy Act) [9]; federal constitutional rights and common law; state laws, including state common law (nuisance, public trust, others) and constitutions; and international treaties and human rights law.  Three growing areas of climate change litigation in the US are state and local government suits against companies, suits based on climate disclosures and greenwashing, and suits alleging human rights violations.

    Corporate liability and responsibility

    To date, climate lawsuits brought by private parties against companies in the US largely have been unsuccessful. Private claimant climate change litigation against companies has primarily consisted of nuisance, negligence, and other tort claims brought against petroleum, chemical, energy, and fossil fuel using companies.[10]  Such claims that have reached decision have generally been rejected by courts, variously holding that such claims are not justiciable, pre-empted, or displaced by federal statute.  For example, in Native Village of Kivalina v Exxon Mobil,[11] plaintiffs Native Village of Kivalina (residing in a remote town in Alaska), brought several federal common law tort claims against 22 energy companies in federal court. They argued that GHG emissions from these companies contribute to climate change, whose  effects include rising sea levels and melting arctic ice impacting their community, concluding  that this constituted a “substantial and unreasonable interference with public rights including the rights to use and enjoy public and private property in Kivalina.”[12] The federal Ninth Circuit held that the statutory Clean Air Act displaced federal common law of public nuisance, and dismissed the case without reaching the merits.[13]

    Partly in response to court rejection of federal claims brought by private plaintiffs, US state and local governments have brought tort claims against fossil fuel producers and others, seeking damages and/or equitable remedies for climate-change-related harm to states, localities, and their citizens.[14] Many of those cases are still pending in federal or state courts.  Those cases that have reached final decision have generally denied plaintiffs any relief. [15] 

    “Greenwashing” and Related Litigation

    Greenwashing

    Although litigation against companies seeking redress for climate change-related injury directly has been largely unsuccessful, increased concern about effects of climate change has also given rise to lawsuits asserting that companies have made false or misleading statements about their products and activity. Such lawsuits are sometimes described as “greenwashing litigation,” referring to suits against companies who allegedly make false or misleading claims about the environmental benefits or effects their products.

    In the past several years, greenwashing litigation, including consumer class actions asserting greenwashing claims, has become more common in the US.  For example, in 2023 separate class-actions were brought against Nike and Delta Airlines alleging misrepresentations in the companies’ claims regarding their products and services’ environmental impacts.

    In Ellis v. Nike USA, Inc., plaintiffs alleged that Nike misleadingly represented its products as sustainable, made with sustainable materials, and environment-friendly.[16] The plaintiffs allege that Nike’s claims that its products in their “Sustainability” collection “reduce waste” and are “environmental friendly” are misleading where the material used to make those products are predominantly made using plastic-based, non-biodegradable textiles.[17]

    Plaintiffs in Berrin v. Delta Airlines, Inc., allege that claims made by Delta Airlines that it was the “world’s first carbon-neutral airline” were demonstrably false.[18]  Delta’s carbon neutrality claim was based on its purchase of “carbon credits” from Verra, an unregulated GHG crediting program. The plaintiffs allege that the credits purchased by Delta provided no benefit to the environment.[19]

    Misleading Statements under consumer protection laws

    In addition to “greenwashing” litigation, a number of US states and localities have sued fossil fuel companies under consumer protection laws, arguing that the defendant companies engaged in deceptive trade practices by misleading consumers about the impacts of the production and use of fossil fuels, and seeking to generate false uncertainty about climate science.[20]

    In Connecticut v. Exxon Mobil Corp. (2022)[21], the State of Connecticut’s lawsuit against ExxonMobil alleged the defendant violated the Connecticut Unfair Trade Practices Act by misleading and deceiving “consumers about the negative effects of [ExxonMobil’s] business practices on the climate.”[22]

    In City of New York v. Exxon Mobil  Corp. (2021), New York City sued several oil companies, including Exxon, alleging that the companies had violated the City’s Consumer Protection Law by “systematically and intentionally” misleading New York City consumers about the “central role their products play in causing the climate crisis.”[23] Similarly, in Vermont v. Exxon Mobil Corp. (2022), the state of Vermont brought a lawsuit against fossil fuel companies alleging that the companies had engaged in deceptive acts and unfair practices in  their marketing, distribution, and sale of fossil fuel products to Vermont consumers.  

    Positive right to a clean and healthy environment

    Some current climate change lawsuits center on claims that deleterious effects of climate change infringe human rights, including rights protected by US or state constitutions. Climate change has significant impacts on lives and livelihoods, which may support human rights claims.  Across the US, there have been a number of lawsuits claiming that insufficient climate mitigation or adaptation measures by governments violate plaintiff’s statutory or constitutional rights, including rights to life, health, food, water, liberty, family life and a healthy environment.[24] These cases are often founded in the theory that those rights are (directly or indirectly) guaranteed by the US or State constitutions.

    In 2023, in Held v. Montana a state court recognized a state constitutional right of children to an environment that is not degraded and depleted of natural resources through the issuance of fossil fuel permits.[25]  As discussed below, the State of Montana appealed the decision to the Montana Supreme Court. The lower court decision was significant in several ways.  First, it was the first US case to find that a state constitutional right to a healthy environment could be used to protect the rights of youth against the effects of exploitation of fossil fuels. The case was also significant in that it put climate science on trial. In response to the evidence presented at trial, the court found that “every additional ton of GHG emissions exacerbates Plaintiffs’ injuries and risks, locking in irreversible climate injuries”[26] The trial court also found  that the magnitude of those injuries would grow, disproportionately harming young people, without effective science-based solutions.[27] 

    The court further found that plaintiffs had proved causation at trial, concluding that “Montana’s contributions to GHG emissions can be measured incrementally and cumulatively both in terms of immediate local effects and by mixing in the atmosphere and contributing to global climate change and an already destabilized climate system,” and that those contributions were nationally and globally significant.[28] Based on those findings, the court struck down a state law limitation on consideration of climate change in Montana government decisions.[29]

    In December 2024, the Montana Supreme Court affirmed the trial court’s decision striking down the state statute that had prohibited regulators from considering GHG emissions in permitting decisions. The Court affirmed the lower court’s holding that the Montana statute violated the plaintiffs’ affirmative constitutional right to a “clean and healthful environment.”

    The young plaintiffs in Held were supported by the non-profit law firm Our Children’s Trust. The public interest firm focuses on youth-based climate litigation, working to establish binding and enforceable rights to a healthy environment. The organization  prioritizes science-based policies, including those recognized by the court in Held. Our Children’s Trust has supported lawsuits in all 50 states. Several of those cases are pending.

    Because the Held decision relied upon the Montana Constitution’s guarantee of a right to a healthy environment, the decision may be most replicable in states with similar constitutional provisions. The constitutions of Hawai’i, Illinois, Massachusetts, New York, and Pennsylvania all contain such a right.[30] Elsewhere in the world, courts have recognized a right to a healthy environment. However, in the US the ruling in Held is significant and could signal a new and potentially significant basis or climate change-related  litigation.

    Federal Constitutional Claims

    For nearly a decade, Our Children’s Trust also has pursued a federal case seeking a ruling that the federal government’s policies and actions facilitating fossil-fuel-based industry, practices, and their effects are unconstitutional under the due process rights to life, liberty, and property guaranteed by the Fifth Amendment.[31] The case, Juliana v. United States, was filed in 2015. After a lengthy series of battles reaching the Ninth Circuit several times over the course of eight years, in December 2023 the district court ruled that the case should proceed to trial, finding the young plaintiffs have standing to bring their claims and stating the court had “no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”  The federal government prevailed on appeal to the Ninth Circuit, and the case is currently pending before the US Supreme Court on plaintiffs’ petition for writ of certiorari (filed in December 2024).[32] 

    Resources for practitioners

    The foregoing outline of climate change litigation highlights that such litigation may be an important tool for advancing climate action and accountability, and seeking actions to arrest climate change and mitigate its effects

    Given the expansive scope of climate change litigation across the US, this short summary seeks to provide only a very high level overview of such litigation and rulings. U.S. climate change law and related rights and remedies are an emerging area of the law. The contours of US climate change law and regulations are evolving, and their effects, requirements, and limitations have yet to be determined.

    Resources providing more in-depth and detailed reviews of US climate change law and litigation include The Sabin Center’s Climate Change Litigation Database and the Global Climate Litigation Status Review Updates from UNEP.


    [1] For convenience and brevity, hereinafter this summary overview will refer to climate change caused by human activity (“anthropogenic”) with the shorthand term “climate change.”  Changes in climate caused by factors other than human activity are beyond the scope of this discussion.

    [2] For instance, see: Urgenda Foundation v. State of the Netherlands [2015] HAZA C/09/00456689.

    [3] See, e.g., United Nations Environment Programme (2023). Global Climate Litigation Report: 2023 Status Review. Nairobi, p 6.

    [4] Id, p IX.

    [5] Id, p 12.  

    [6] Id.  

    [7] United Nations High Commissioner for Human Rights, ‘Human Rights and Climate Change’ https://www.ohchr.org/sites/default/files/Documents/Issues/ClimateChange/materials/KMClimateChange.pdf.

    [8] Setzer J and Higham C (2021) Global trends in climate change litigation: 2021 snapshot. London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, p 23.

    [9] Yale Sustainability, “Yale Experts Explain Climate Lawsuits,” 16 August 2023, https://sustainability.yale.edu/explainers/yale-experts-explain-climate-lawsuits.

    [10] Geetanjali Ganguly, Joana Setzer and Veerle Heyvart, ‘If at First You Don’t Succeed: Suing Corporations for Climate Change’ (2018) 38(4) Oxford Journal of Legal Studies 841.

    [11] Kivalina v ExxonMobil Corporation et al 696 F.3d 849, 2012 WL 4215921 (9th Cir 2012).

    [12] Nicole Johnson, “Native Village of Kivalina v. ExxonMobil Corp: Say Goodbye to Federal Public Nuisance Claims for Greenhouse Gas Emissions” Vol. 40, No. 2, Annual Review of Environmental and Natural Resources Law (2013), pp. 557-563.

    [13] Id.

    [14] See, e.g., City of New York v. BP p.l.c. 2021; City of New York v. Exxon Mobil Corp 2021; Connecticut v. Exxon Mobil Corporation 2022; Vermont v. Exxon Mobil Corp 2022; City of Hoboken v. Exxon Mobil Corp 2022; City of Oakland v. BP p.l.c. 2022; Mayor & City Council of Baltimore v. BP p.l.c. 2023; City of Charleston v. Brabham Oil Co. 2023; City & County of Honolulu v. Sunoco LP 2023; Rhode Island v. Shell Oil Products Co. 2023; County of San Mateo v. Chevron Corp 2023; State v. American Petroleum Institute 2023; Delaware v. BP America Inc.2023; District of Columbia v. Exxon Mobil Corp 2023; Board of County Commissioners of Boulder County v. Suncor Energy,2023.

    [15] For instance, in the City of New York v. Chevron Corp. (2019), the Second Circuit Court of Appeals dismissed New York City’s common-law claims on the basis that, the City could not utilize state tort law to hold major fossil fuel companies liable for damage occurring outside the state. Consequently, the Court held that this called for the application of the federal common law and agreed with Kivalina and held that the Clean Air Act displaces federal common law. The US Supreme Court has held that federal common law is very limited, and generally applies only in those instances in which Congress has not addressed the issue.

    [16]Ellis v. Nike USA, 4:23-cv-00632 (E.D. Mo. May 10, 2023), see complaint, p 2 on Climate Case Chart: https://climatecasechart.com/case/ellis-v-nike-usa-inc/.

    [17] Id.

    [18] Patrick Greenfield, Delta Air Lines faces lawsuit over $1bn carbon neutrality claim, The Guardian (May 30, 2023), https://amp.theguardian.com/environment/2023/may/30/delta-air-lines-lawsuit-carbon-neutrality-aoe.

    [19] Id.

    [20] United Nations Environment Programme (2023). Global Climate Litigation Report: 2023 Status Review. Nairobi, p 59.

    [21] Connecticut v. Exxon Mobil Corp. (2022), see complaint on Climate Case Chart: https://climatecasechart.com/case/state-v-exxon-mobil-corp/ 

    [22] Id. Complaint, p 1.

    [23] City of New York v. Exxon Mobil  Corp. (2021), see Complaint, p 1 on Climate Case Chart: https://climatecasechart.com/case/city-of-new-york-v-exxon-mobil-corp/

    [24] See U.S Climate Change Litigation, Climate Case Chart: https://climatecasechart.com/us-climate-change-litigation/

    [25] Held v. Montana, No. CDV-2020-307 (Montana First Judicial District Court, Lewis and Clark County, August 14, 2023) at page 90. 

    [26] Id. at 87. 

    [27] Id.

    [28] Id. At 88.

    [29] Id, at 102. 

    [30] John C. Dernback, The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis, Widener Law Commonwealth Research Paper No. 23-05, 2023. 

    [31] Associated Press, “Youth Climate Lawsuit Heads to Trial in Oregon,” AP News, 2 June 2023, https://apnews.com/article/youth-climate-lawsuit-trial-oregon-7ad2fa18f5276f12c64c0ce775aba2f6

    [32] Our Children’s Trust: Juliana v. United States, https://www.ourchildrenstrust.org/juliana-v-us