Over the past few years, climate change litigation--principally against private fossil fuel companies--has mainly been pursued by local governments in the United States through civil litigation in the courts. These suits, typically brought by private lawyers operating on a contingency fee, have often proceeded under a theory of nuisance or other common law claims. Although there have been occasional actions brought by state attorneys-general, such as the case unsuccessfully pursued by the NYAG against ExxonMobil, those have been relatively few in number (though around half a dozen have been filed in the past couple of months, e.g., by Delaware).
It appears that the Biden Administration will focus on climate change litigation brought by the DOJ. This represents a significant escalation in potential liability risk for fossil fuel companies, as not only does the federal government possess greater resources to prosecute such actions, but it is possible that the DOJ may bring enforcement actions under an aggressive theory of liability in addition to the civil tort actions currently prevalent. Further, the DOJ in the Trump Administration frequently filed amicus curiae briefs on behalf of the fossil fuel company defendants, arguing that certain claims were preempted by federal law. Should the Biden Administration adopt a different view, as seems probable, then the legal position of fossil fuel companies in the existing climate change lawsuits may also be under additional pressure.
In this anticipated regulatory environment, it is also possible that the DOJ may begin to pursue actions against a broader array of companies than the fossil fuel industry. For example, the DOJ might consider taking aggressive actions against companies who have apparently prepared insufficiently for climate change, perhaps by siting critical facilities in an area vulnerable to sea level rise. Corporations operating in the United States should consider their potential climate change liability under a Biden Administration, and prepare accordingly.
Biden’s campaign has laid out ambitious plans for proactive environmental work within the Justice Department, committing to the creation of a new Environmental and Climate Justice Division. The new office would “complement the work” of ENRD by increasing criminal prosecutions and other enforcement, supporting climate litigation against fossil fuel companies, addressing legacy pollution issues, and working closely with the EPA’s Office of Civil Rights, according to the plan released earlier this year.