Are Fossil Fuels the Next Cigarettes?

“California’s lawsuit against oil giants mirrors a legal strategy used in the 1990s against the tobacco industry.”

Are Fossil Fuels the Next Cigarettes?

California’s lawsuit against oil giants mirrors a legal strategy used in the 1990s against the tobacco industry.

By Vivienne Walt, Michael J. de la Merced and Bernhard Warner

Published Sept. 23, 2023Updated Sept. 25, 2023

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California is taking some of the world’s biggest energy companies, including Shell, Exxon Mobil and Chevron, to court, accusing them of concealing the damage caused by fossil fuels on the state for more than half a century. The state’s lawsuit is the most significant attempt to take on Big Oil over its role in climate change, as the energy majors report bumper profits and oil nears $100 a barrel.

The strategy has echoes of an earlier fight: states’ legal battle against Big Tobacco in the 1990s.

California wants the companies to cover costs of fighting wildfires and mitigating the effects of dense smog. It argues that the oil majors should pay fines for burying scientific evidence linking carbon emissions to greenhouse gases. “It’s time they pay to abate the harm they have caused,” Rob Bonta, California’s attorney general, said in a statement.

The American Petroleum Institute, the industry lobbying group also named in the case, called the suit “meritless” and “an enormous waste of California taxpayer resources.”

California is reopening a playbook it used to take on Big Tobacco.In the 1990s, California and dozens of other states brought cases against the four biggest U.S. tobacco companies. Prosecutors proved that the companies had concealed evidence linking smoking to cancer, winning a payout of more than $360 billion over 25 years. The companies were also compelled to label cigarettes as potentially lethal, to change how and where they marketed them, and to disband the Tobacco Institute, the industry-funded trade group.

There are historic links and echoes between the behavior of Big Tobacco and Big Oil. In the 1950s and 1960s, oil companies helped the tobacco industry test poisons in cigarettes. And then there was a 1968 report commissioned by the American Petroleum Institute and conducted by the Stanford Research Institute. It detailed how fossil fuels caused climate change but was never widely distributed, said Carroll Muffett, C.E.O. and president of the Center for International Environmental Law, who has studied the links between the two industries.

Collective action worked. For years, individual plaintiffs had repeatedly lost lawsuits to Big Tobacco. “It was only when the states as litigators got involved that the landscape changed dramatically,” Muffett said, adding that “you had litigators who had the resources and patience to stay in litigation as long as the companies.”

California has outsize political clout as the world’s fifth-biggest economy and a major oil producer. It has used that power to, for example, shape quasi-national policy on reducing auto emissions. And this month, the State Legislature passed a bill that would force big companies to detail their carbon emissions — a first by a U.S. state and a leap ahead of the Securities Exchange Commission, which is drafting its own climate disclosure rules for companies to follow.

The oil majors face lawsuits elsewhere. Cases in the Netherlands, Britain, France and Italy argue that the industry bears some responsibility for climate change, and similar litigation is underway in New York, Massachusetts and Rhode Island. “The diversity of claimants is growing apace,” said Paul Benson of ClientEarth, an environmental law organization in London, who led a lawsuit against Shell’s board this year alleging that the company wasn’t reining in carbon emissions fast enough.

Victory is far from certain. Prosecutors could face a tougher task proving oil companies’ climate culpability than their predecessors did linking smoking to harmful health effects. In July, a British judge blocked ClientEarth from proceeding with its case against Shell, saying courts should not interfere with corporate strategy; the organization is appealing the decision.