Fossil Fuel Companies Must Face Claims by Puerto Rico's Capital City in Climate Lawsuit, Judge Says

Hi, dear reader. Here's what's in this newsletter:

• A magistrate judge says that ExxonMobil, Chevron, Shell, and other fossil fuel majors must face the racketeering and antitrust claims presented in the Municipality of San Juan's climate lawsuit.
• A primer on the International Court of Justice's groundbreaking advisory opinion saying that countries must act on climate change and that those who fail to act could be held liable for compensation.

I originally broke the story about the magistrate judge's recommendation on San Juan's claims against Big Oil & Gas on my social media, but didn't have time to write it up until now. If you want to be alerted to breaking news as soon as it happens, follow me there: Bluesky & Instagram.

On Tuesday, a United States judge recommended ExxonMobil, Chevron, and other fossil fuel companies face claims brought by the Municipality of San Juan in Puerto Rico in a lawsuit that accuses the companies of colluding to mislead the public about the effects of climate change and suppress renewable energy.

Magistrate Judge Héctor Ramos Vega recommended San Juan be allowed to pursue racketeering and antitrust claims against the fossil fuel companies. However, he dismissed several state claims, like consumer fraud and deceptive business practices.

Now, a federal district court judge must choose whether to abide by Ramos Vega’s recommendations or only pick up a part of them.

San Juan’s lawsuit alleges the fossil fuel companies colluded to fund “climate change denial marketing campaigns” that mislead Puerto Ricans about the threat posed by climate change, how their products caused it, and the anticipated effects on Puerto Rico, according to the original federal complaint. The lawsuit also alleges that defendants “excluded other renewable players from entering the market" through these actions.

The lawsuit is seeking damages for the devastating effects of the 2017 hurricane season on Puerto Rico, whose intensity was increased by the defendants' contributions to climate change, according to the complaint.

Ramos Vega’s recommendation is pretty much the same as his April recommendation in the first-ever climate Racketeering Influenced and Corrupt Organizations (RICO) lawsuit, which was originally filed by several Puerto Rican municipalities in 2022. That Municipalities lawsuit sues the same defendants (plus the American Petroleum Institute) and lists the same causes of action.

San Juan’s lawyer, David Efron, previously submitted a request to consolidate the cases and it is still pending. Heavy Weather has previously reported on Efron being accused of plagiarising the San Juan lawsuit from the Municipalities lawsuit by the district judge overseeing the case and sanctioned for untimely filings. 

Meanwhile, the Municipalities’ lawsuit is still awaiting certification as a class action, according to the report and recommendation. If it were certified as a class action it would mean that all 78 of Puerto Rico’s municipalities could join the case as plaintiffs. 

While it remains to be seen whether a district judge will abide by Ramos Vega’s recommendations in both cases, this is still a huge step in the quest towards holding fossil fuel companies accountable for their contributions to the climate crisis. BP, Shell, ExxonMobil, and Chevron are collectively responsible for over a trillion in damages caused by climate catastrophes, according to an analysis published in the journal One Earth in 2023.

Small Islands Developing States, like Puerto Rico, are on the “frontlines of climate change” because of their lack of resources, dependence on imports, geography and limited access to climate finance. In 2017, Hurricanes Irma and Maria — which are specifically cited in the complaint — caused over $90 billion in damages and thousands of deaths in the archipelago[[1]]. The archipelago has still not recovered and likely remains unprepared for similar hurricanes.

I previously broke the story of the Puerto Rico government voluntarily dismissing its climate deception lawsuit against the fossil fuel industry.

The defendants in the San Juan lawsuit are Exxon Mobil, Shell, Chevron, BP, Motiva, Occidental Petroleum, BHP, Riot Tinto, and ConocoPhillips. They claim they did no wrongdoing. 

Objections to the report and recommendation have to be filed within 14 days of the original filing date.

Dozens of states and municipalities have sued the fossil fuel industry for their role in worsening climate change over the last few years. While many of these lawsuits have been allowed to proceed, several have been dismissed. 

You can find Ramos Vega’s report and recommendation on Courtlistener and below:

The day after the report and recommendation in the San Juan lawsuit was issued, the International Court of Justice issued a landmark advisory opinion stating that governments have a legal obligation to address the climate crisis and that vulnerable nations can be owed reparations for the irreparable harms they face because of the world's largest emitters refusal to curb fossil fuels.

The unanimous opinion also says that governments have a legal duty to “‘use all means at their disposal’ to prevent activities within their territories from causing significant harm to Earth’s climate,” according to Inside Climate News.

“Failure of the state to take appropriate action to protect the climate system from GHG emissions including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses or the provision of fossil fuel subsidies may constitute an internationally wrongful act which is attributable to that state,,” said Iwasawa Yuji, president of the ICJ, when reading the court's opinion, according to Climate in the Courts.

What’s being called the “biggest climate case in history” began in 2019 as a campaign by students from the University of the South Pacific  to persuade leaders of 18 Pacific Island countries to bring climate change and human rights issues to the ICJ. They eventually joined with youths from across the world to form World’s Youth for Climate Justice in 2020. A year later, Vanuatu — a pacific archipelago nation that has already been forced to relocate entire villages because of sea level rise — began spearheading diplomatic efforts to bring the resolution to the world's highest court.

Despite being responsible for less than 1% of total greenhouse gas emissions, SIDS like Vanuatu and Puerto Rico face some of the worst effects of climate change. Being able to hold the world’s largest emitters legally accountable for their role in supercharging the climate crisis is an important step in preparing for the effects of a warming world. Caribbean leaders are already hailing the outcome as a “historic legal victory” for SIDS, according to The Guardian. 

While the opinion is not legally binding, it will likely cause an increase in climate litigation at international and domestic levels, as well as add more teeth to their claims. 

“The message is clear: there is no carve-out for climate destruction under international law, and there is no legal or technical bar to holding states responsible for resulting harm. The repercussions of this ruling will be felt around the world, in courtrooms and boardrooms, from negotiating halls to town halls, and on city streets. It will serve as a crucial reference for courts facing a rising tide of climate litigation, for communities facing rising temperatures and seas, and for policymakers facing rising calls to make polluters pay. The global majority demanded climate justice, and the World Court responded: the law is on your side,” said Nikki Reisch, director of the Center for International Environmental Law’s climate and energy programs, in a press release. 

To be honest, while I acknowledge this is a momentous win for climate justice, I’m wary of how much this opinion will lead to appreciable change in climate policies in the immediate future. COP30 is around the corner and every SIDS country will be using this opinion as a way to advocate for more climate action and finance. However, international organizations like the UN are disproportionately controlled by the world’s highest emitters and warmongers, who will be reluctant to actually do anything that compromises their bottom line and ability to use their power. 

Anyway, the official opinion of the Heavy Weather newsletter is that fossil fuel companies and the world’s largest emitters should be sued into oblivion for their contributions to the climate crisis.

[[1]]: The amount of deaths caused by Hurricane María is still disputed. Based on a 2018 study from George Washington University, the government of Puerto Rico's official death toll is 2,975 deaths. Meanwhile, a 2018 Harvard study estimated that at least 4,645 people died amid the devastation.