As the US government continues to call climate change a lie and attack science, in courts from The Hague to Honolulu, fossil fuel companies are taking a different tack. Shell, Chevron, RWE and TotalEnergies all accept that climate change is real, human-caused and serious. The era of denying the business climate, at least in legal systems, is largely over.
What has replaced it is a more nuanced position: accepting the science of climate change while denying their own responsibility for it.
New research published in the journal Transnational Environmental Law provides the first systematic analysis of how large fossil fuel companies defend themselves when taken to court over their role in causing global warming. Based on case documents from key cases, research identifies three distinct strategies that companies use.
The first and broadest argument is that climate change is a collective problem caused by society’s need for energy, not by the companies that provide it. Chevron and Shell, in different contexts on different continents, cited the same part of the IPCC’s Fifth Assessment Report – that greenhouse gas emissions are influenced by “population, economic activity, lifestyle, energy use” – to argue that the responsibility lies with today’s industrialized society as a whole.
German energy giant RWE made a similar defense in a lawsuit brought by a Peruvian farmer and mountain guide who argued that the company’s emissions contributed to the glacial retreat that threatened his home. RWE’s lawyer told the court that the company’s emissions were produced “for the benefit of all to ensure a stable supply of energy”.
Shell, which is being sued by Dutch environmental groups who want to cut production by 45% by 2030, disputed its claim that the energy transition is the responsibility of governments, not individual companies.
This framework posits fossil fuel production as a passive response to demand, rather than a driver of risk, and positions political processes — not courts — as the proper venue for addressing climate change.
The second strategy is more technical. Companies don’t deny that the climate is warming or that human activities are the cause. However, they argue whether there is a clear legal basis between their proposal and science.
In the RWE case, lawyers challenged a peer-reviewed study in Nature Geoscience that described the risk of flooding in a Peruvian glacier and human warming – not by denying climate change but by arguing that the nature of the ice is questionable, and that CO.2 The molecules were “indistinguishable from each other”, making it legally impossible to attribute a specific exposure to a specific risk.
In Italy, where Greenpeace and a group of citizens sued the energy company Eni because of its production, its defense shows how climate change has affected bad weather – like a rare, unusual place. Everywhere, the process is the same: companies argue that climate science is valid for understanding global warming but it is contested as a basis for determining who bears certain legal responsibilities.
The third strategy involves questioning the credibility of those who produce science. In the RWE case, the company’s lawyers presented tweets published by prominent climate scientist Friederike Otto – who said she described climate cases as “interesting” – to argue that she was too biased to act as a court-appointed expert. When the plaintiff presented an independent study carried out by researchers in Oxford and Washington, lawyers attacked the social media and professional associations, arguing that the communications between scientists are evidence of a connected network.
In the United States, defendants in a lawsuit brought by Oregon’s Multnomah County against ExxonMobil and other oil companies have sought to produce peer-reviewed evidence by alleging undisclosed relationships between the plaintiff’s attorney and study authors.
In courts around the world, there is a similar pattern: fossil fuel companies accept the science but reject responsibility. The central battleground in the climate case will no longer be whether climate change is happening, but who, legally and financially, is responsible for it.
Noah Walker-Crawford is a research fellow at Imperial College London and the London School of Economics and author of Save the Climate but Don’t Blame Us: Integrated Debates in Climate Litigation, published in Transnational Environmental Law.
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