Since 2017, U.S. states, municipalities, tribes, and cities have sought billions of dollars in damages from oil and gas companies for the environmental harm they have caused by their fossil fuel activities. This subnational government-led litigation campaign seeking to hold fossil fuel companies accountable is a meaningful step in the fight against the growing climate catastrophe. At the same time, it raises complex legal and ethical questions that have received scant attention.
As this Article illustrates, the fragmentation of global climate harm into individual lawsuits, in which each local government seeks damages for its own mitigation and adaptation costs, could lead to a “first-sue, first-served” climate finance regime. And while U.S. states have launched their judicial battles for redress, developing countries—which are least responsible for carbon emissions yet are the most climate-vulnerable—are likely to fall last in line. The urgency to secure funds to mitigate and adapt to climate harms is exacerbated by the limited success of international negotiations, which have thus far failed to provide developing countries with adequate financial guarantees.
This Article explores the benefits and risks of this litigation effort, the responsibilities of wealthy subnational litigants toward developing nations, and how applying new approaches to climate litigation awards could better align domestic litigation with international climate justice.
