The one question about climate change only the courts can answer

President Biden has taken important steps to put the United States on the path to addressing our escalating climate crisis. In his first week on the job, Biden rejoined the Paris climate agreement, canceled the Keystone XL pipeline and announced a new ban on oil and gas drilling on public lands. 

But when it comes to the immense, billion-dollar costs that climate change will continue to force on American communities, there is one question that executive orders and much-anticipated legislation from Congress is poorly positioned to answer: Who should pay for it all: taxpayers or the polluters who knowingly caused the crisis? 

From tobacco and opioids to asbestos and lead paint, matters of justice and liability for harms caused by products sold to the public have and always will be decided by the courts. Climate change is no different. Global warming is a problem largely caused by one single industry: fossil fuels. Major oil and gas companies spent decades lying to the public about the catastrophic damage they knew their products would cause, and they are now rightfully facing a flood of climate liability lawsuits in courts that seek to hold them accountable for their lies and the cost of ensuing climate damage from flooding, wildfires, sea-level rise, heat waves and more severe storms. 

One of these lawsuits, from the city of Baltimore, has now reached the U.S. Supreme Court. Lower courts have consistently ruled in favor of Baltimore and other communities that climate damages suits can and should proceed in state court. But on January 19, Exxon, BP, Chevron, Shell and other defendants asked the justices to consider a procedural argument that the companies hope could further delay the people of Baltimore from having their rightful day in court. 

Regardless of the high court’s ruling, one thing is clear: the pressing question of liability for the damages caused by climate change belongs in, and will be decided by, the courts. 

The core principle behind these damages lawsuits is simple: The polluter should pay. Just a relatively small number of fossil fuel companies have been responsible for more than 70 percent of the greenhouse gas emissions that cause climate change since 1988. While companies such as Exxon, Chevron, Shell and BP made billions selling oil and gas to the public, we now know, thanks to whistleblowers and journalists, that industry scientists were telling their executives as early as the 1970s that their products could lead to “globally catastrophic events.”  

Rather than act, these same companies then concealed their knowledge and lied to the public, press and policymakers through what Minnesota Attorney General Keith Ellison last year called a “decades-long campaign of deception.” Just like Big Tobacco, Big Oil lied about the harms its products would cause while the rest of us paid the price. 

Ellison is one of the dozens of state and municipal leaders across the country taking legal action to make sure that the companies that caused and lied about the climate crisis are held accountable and pay their fair share of the damage. From Charleston, South Carolina, and Boulder, Colorado, to Honolulu and Connecticut, these officials refuse to let climate polluters get off scot free while their own taxpayers are left footing the bill. 

Meanwhile, the size of that bill continues to grow. From unprecedented wildfires to the most active Atlantic hurricane season ever known, 2020 witnessed a record number of climate disasters costing more than $1 billion each, according to the National Oceanic and Atmospheric Administration. The nearly $100 billion price tag, which doubled the total from 2019, does not include smaller disasters, or the even more expensive costs of climate adaptation projects, like raising roads, building seawalls, renovating sewage and storm drain systems and upgrading air conditioning in schools and other public buildings that communities across the country must take on in order to survive our warming world. 

Lawsuits seeking damages from climate polluters are not about solving climate change. They are about survival and justice. That’s why President Biden, while promising to work with Congress to transition the U.S. to a clean energy economy, has separately pledged that his Department of Justice will “strategically support ongoing plaintiff-driven climate litigation against polluters.” Each branch of government has a role to play. While it’s important that Biden and Congress do their job to advance climate policy, it’s just as important for the courts to do theirs: hold the multibillion-dollar fossil fuel industry accountable for paying to clean up its own mess. 

Richard Wiles is executive director of the Center for Climate Integrity.