This essay first appeared on Fix, Grist’s solutions lab.
By Pablo Fajardo Menoza and Sriram Madhusoodanan
Pablo Fajardo Mendoza is an environmental justice lawyer at the Unión de Afectados por Texaco. Sriram Madhusoodanan is the U.S. climate campaign director at Corporate Accountability, a global corporate watchdog and campaigning organization.
Last summer, Delaware, Connecticut, and other states joined cities like Hoboken, New Jersey, and Charleston, South Carolina, in suing fossil fuel corporations including Exxon Mobil, BP, Chevron, and Shell for misleading the public about the climate impacts of burning fossil fuels. That now makes 16 U.S. cities, counties, states, and the District of Columbia with active litigation.
For justice to be truly served in U.S. courts, however, policymakers and communities trying to hold the fossil fuel industry accountable must do everything in their power to secure justice and restitution for those most impacted around the globe. A critical first step is teaming up and aligning strategies to end the legal loopholes corporations use to escape liability.
To achieve this, a global coalition of liability experts, social justice activists, and NGOs — including one of ours, Corporate Accountability — teamed up to create a tool for governments and civil society movements. Called the Liability Roadmap, it pulls together the expertise of Indigenous and frontline communities that are fighting the worst polluters and setting global legal precedents. A key element for success is collaboration.
While U.S.-based fossil fuel corporations have run roughshod over human rights, democracy, and the environment around the world in pursuit of profit, frontline communities have been waging legal battles for decades. They’ve won many favorable rulings. For example, in 2019, a Dutch court ruled in favor of four Nigerian women in a decades-long suit against Royal Dutch Shell for its complicity in the 1995 deaths of their husbands, allowing the suit to proceed. In Chad in 2016, a court fined Exxon $74 billion in back taxes and royalties. And in Ecuador, Indigenous communities won a judgment ordering Chevron to pay $9.5 billion for the corporation’s extraction, damages, and pollution in the Amazon.
Yet in many of these cases, the defendants have yet to pay a dime. In Ecuador, for example, Chevron countersued the country, leveraging a bilateral investment treaty to avoid paying. In isolation, these cases face long odds against the financial, legal, and political might of Big Polluters, which threaten endless counter-litigation and legal intimidation to escape accountability. Land and environmental defenders are also at high risk of violence. According to Global Witness, 2019 was the deadliest year on record. In Colombia and elsewhere, fossil fuel, mining, and agribusiness corporations have been accused of complicity.
The first step for those taking on Big Polluters in the U.S. is to reach out to those around the globe who have been doing the same.
To succeed against these odds, litigants and civil society must join together to share resources and strategy, just as the world did against another deadly industry, tobacco. One of the inspirations for the Liability Roadmap is found in a little-known public health treaty of the World Health Organization called the Framework Convention on Tobacco Control. Among other critical measures, it details how governments could recoup immense tobacco-related health care costs. Included in the framework is a civil liability toolkit to help countries use their laws and international agreements to the greatest effect, along with suggestions for changing laws and pursuing precedents that prevent corporations from exploiting trade agreements to avoid liability.
Collaboration can take a multitude of forms. In many cases, it’s as simple as sharing intelligence on industry operations and legal strategy. But it can also mean international collaboration between countries. Legal cases seek justice in the form of criminal and civil liability for abuses, but their purpose is often broader: ending the fossil fuel industry’s long record of political manipulation. The first step for those taking on Big Polluters in the U.S. is to reach out to those around the globe who have been doing the same.
The success of U.S.-based fossil fuel corporations like Chevron has depended upon the exploitation and abuse of resources and people in the Global South. So it is also imperative legal victories benefit those communities that have endured the greatest impacts of corporate abuse. Justice in the U.S. must be restorative beyond its borders.
There’s a growing call for such equity at negotiating meetings of the UN Framework Convention on Climate Change, the global climate treaty that the Paris Agreement is part of. Climate-justice and environmental groups are calling for governments negotiating the implementation of the treaty to establish a fund that would support nations hit hard by climate impacts. As part of that process, governments could require that wealthy nations allocate a percentage of fossil fuel litigation proceeds to such a fund. This would be groundbreaking and provide a path toward repairing the deliberate harm caused by polluting corporations.
We know going it alone doesn’t work. It’s time to work together to catalyze a just and equitable transition from fossil fuels. It’s time to make Big Polluters pay.
