While the U.S. government continues to call climate change a hoax and attack the science, in courtrooms from The Hague to Honolulu, fossil fuel companies are taking a different approach. Shell, Chevron, RWE and Total Energy all acknowledge that climate change is real, man-made and serious. The days of denying the corporate environment, at least in legal proceedings, are almost over.
What has been replaced is a more nuanced position that accepts the science of climate change while contesting responsibility for it.
A new study published in the journal Transnational Environmental Law provides the first systematic analysis of how major fossil fuel companies defend themselves when brought to court over their role in causing global warming. The study identifies three different strategies companies are using, based on case documents from landmark cases.
The first and most widespread argument is that climate change is a collective problem caused by society’s energy needs, not by the companies that supply it. In separate lawsuits on different continents, Chevron and Shell cited the same passage from the IPCC’s Fifth Assessment Report, which says greenhouse gas emissions are caused by “population size, economic activity, lifestyle, and energy use,” and argued that responsibility lies with modern industrial society as a whole.
German energy giant RWE offered a similar defense in a lawsuit brought by a Peruvian farmer and mountain guide who claimed the company’s emissions contributed to the retreat of glaciers threatening his homeland. RWE’s lawyers told the court that the company’s emissions were generated “in the public interest of ensuring a reliable supply of energy.”
RWE’s lawyers argued that because CO2 molecules are “indistinguishable from each other,” it is legally impossible to trace the effects of specific emissions to specific harms. Photo: Angela Ponce/Reuters
Shell, which was sued by Dutch environmental groups seeking to cut emissions by 45% by 2030, argued in its appeal that the energy transition was the responsibility of governments, not individual companies.
This framework reframes fossil fuel production as a passive response to demand rather than something that poses harm, and positions the political process, rather than courts, as the appropriate forum to address climate change.
The second strategy is more technical. Companies don’t dispute that the climate is warming or that human activity is to blame. But they dispute whether there is a clear legal causal link between the emissions and the science.
In the RWE lawsuit, the lawyers challenged a peer-reviewed Nature Geoscience study that attributed flood risk in Peru’s glacial lakes to anthropogenic warming, arguing that rather than denying climate change, glacier models contain fundamental uncertainties and that CO2 molecules are “indistinguishable from each other,” making it legally impossible to trace specific emissions and specific harms.
In Italy, where Greenpeace and citizen groups sued the energy company Eni over emissions, Greenpeace’s defenders identified attribution – the field of science that shows how climate change has affected extreme weather events – as an early non-standard area. This pattern is consistent across jurisdictions, with companies claiming that climate science helps them understand global warming, but the basis for establishing who bears specific legal responsibility remains controversial.
A third strategy involves questioning the credibility of those presenting science. In the RWE case, the company’s lawyers submitted printouts of tweets from prominent climate scientist Friederike Otto, noting that she described climate change litigation as “interesting” and arguing that she was too bigoted to serve as a court-appointed expert. When the plaintiffs presented an independent attribution study by researchers in Oxford and Washington, their lawyers attacked the lead authors’ social media posts and professional associations, arguing that connections between the scientists constituted evidence of a coordinated network.
In the United States, defendants in a lawsuit brought by Multnomah County, Oregon, against ExxonMobil and other oil companies are attempting to attack peer-reviewed evidence, alleging undisclosed relationships between the plaintiffs’ lawyers and the study authors.
The same pattern holds true in courts around the world. Fossil fuel companies are now accepting the science but rejecting responsibility. The central battleground in climate change litigation will no longer be whether climate change is occurring, but who is legally and financially responsible for it.
Noah Walker-Crawford He is a research fellow at Imperial College London and the London School of Economics and the author of Save the Climate but Don’t Belame Us: Corporate Arguments in Climate Litigation, published in Transnational Environmental Law.
