The Political Economy of Climate Change Litigation: Is There a Point to Suing Fossil Fuel Companies?

ABSTRACT

This paper examines the social-theoretical assumptions and assesses the potential effectiveness of holding carbon-intensive corporations legally accountable for climate change harms. We argue that the structure of private corporations operating in a growth-dependent capitalist social formation is the problem, not concrete companies. Ignoring social structure has practical consequences. Assuming favourable court outcomes in the future – a questionable assumption considering remaining procedural obstacles and the status quo-preserving tendencies of law –, bringing claims against corporations for civil wrongs will remain ineffective as a mitigation strategy because many carbon-intensive corporations can absorb substantial lawsuit-related costs and, even if legal costs push fossil fuel companies out of business, their competitors will step in to extract open reserves. Changing the law, rather than pursuing individual offenders, will necessarily need to provide more systemic recourse to environmental degradation. We recommend a potentially more effective mitigation strategy for which lawyers concerned about climate change could lend knowledge, resources, and time: fossil fuel nationalisation.

KEYWORDS:

• Climate litigation
• environmental law
• treadmill of production
• fossil fuel nationalisation/nationalization
• climate law

Acknowledgements

We would like to thank Diana Stuart for comments on an earlier version of this paper.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 We cannot locate an English translation of the Dooh decision. A link to the decision in Dutch is provided by Quell (2021).

Additional information

Notes on contributors

Ryan Gunderson

Ryan Gunderson is an Associate Professor in the Department of Sociology and Gerontology and Affiliate of the Institute for the Environment and Sustainability at Miami University. His research interests include environmental sociology, the sociology of technology, social theory, political economy, and animal studies.

Claiton Fyock

Claiton Fyock is a PhD Candidate at the University of Leicester Law School researching development and international economic law.