As public concern about climate change grows, so does frustration with the federal government’s inability to develop a strategy for reducing greenhouse gas emission. Consequently, in the past decade, multiple states and municipalities have filed lawsuits seeking to address climate change through common law claims, such as public nuisance. Courts, however, dismissed many of these suits because the Supreme Court held in 2011, in American Electric Power Company v Connecticut, that the Clean Air Act governs greenhouse gas emissions and therefore displaces the common law as a cause of action. Despite this unfavorable precedent, the past three years produced numerous new climate-related lawsuits against fossil fuel companies. Almost all these cases cite the fossil fuel industry’s decision to misrepresent and conceal the link between their products and climate change as a driving impetus for the lawsuits. Nevertheless, plaintiffs continue to base their complaints on the perilous legal foundation of public nuisance. This Note argues that plaintiffs seeking to hold fossil fuel companies accountable for climate change should instead bring causes of action for civil conspiracy and fraud. By combining civil conspiracy with fraudulent misrepresentation and fraudulent concealment, plaintiffs can require companies to pay for what has consistently delayed climate action: disinformation about the nature and causes of climate change.
Joseph Manning, Climate Torts: It’s a Conspiracy!, 62 Boston College Law Review 941 (2021).