Wisconsin AG urged to sue oil companies for climate damages

May 24, 2023

Originally published in Politico, April 28, 2023 by Minho Kim

A new liberal majority on the Wisconsin Supreme Court is raising pressure
on the attorney general to join climate litigation.


In April 2023, the US Supreme Court rejected five oil industry requests to intervene in cases brought by a dozen municipalities. Environmentalists in Wisconsin are urging the state attorney general to join a growing list of states and municipalities that are suing major oil companies for climate damages and to capitalize on a pair of potentially game-changing recent judicial events. 

Three weeks after Wisconsin voters elected a new judge to the state’s highest court and gave liberals a majority for the first time in 15 years, the U.S. Supreme Court ruled Monday that the climate-liability lawsuits must be heard in state courts. 

The Supreme Court rejected the oil industry’s effort to move the lawsuits to federal court, increasing pressure on Wisconsin’s Democratic attorney general to join the six states and 20 municipalities seeking damages from oil companies such as Exxon Mobil Corp. 

Dean Muller, president of Wisconsin for Environmental Justice, said he is seeking a meeting with the attorney general, Josh Kaul, to urge him to file suit, while his group is building support around the state. 

“We’re trying to get more people saying, ‘Now’s the time to get going, Kaul,” said Tom Seery, a former Wisconsin state legislator and a leader of Wisconsin for Environmental Justice, whose steering committee includes prominent environmental and labor groups in the state. 

Wisconsin-based Midwest Environmental Advocates said in a statement that a lawsuit against oil companies is “a suitable path to redress the harms posed by greenhouse gas emissions, hold polluters accountable and advocate for climate justice.” 

Kaul has not spoken publicly about the climate litigation, and his office did not respond to E&E News’ request for comment. He has said his office is “committed to fighting for clean and safe drinking water and against climate change.” 

In 2019, Kaul joined 21 states in a lawsuit against the Trump administration’s new rule that rolled back limits on carbon emissions from power plants, labeling it as a “dirty power rule.” 

Wisconsin would become the second Midwestern state along with Minnesota to sue oil companies for climate damages, which would add national momentum, said Cinnamon Carlarne, a climate law professor at Ohio State University. 

“The more cases that are filed by large powerful states, the more we begin to think that this is a legal space that is ripe for change,” Carlarne said. Litigation against tobacco companies gained traction as more states brought lawsuits in the 1990s, which produced new disclosures, Carlarne added. 

The five other states suing oil companies are Connecticut, Delaware, Massachusetts, Rhode Island and Vermont. The localities that are suing include Washington; Baltimore; Boulder, Colo.; and Santa Cruz, Calif. 

In Wisconsin, officials in the state’s two largest counties — both of them heavily Democratic – are looking into potential litigation. 

Milwaukee County is “newly assessing” whether a lawsuit against oil companies would be viable under Wisconsin law, county corporation counsel Margaret Daun said in a scathing email that assailed the companies. 

“If there are meritorious claims to assert against giant corporations that lie and conceal the systemic, existential, and indisputably known negative results of their profit-making enterprises, the devastating costs of which they then pass along to the residents of Milwaukee County, rest assured, my office will use every tool available to ensure that such corporate wrongdoers are held to account,” Daun said. 

In Dane County, which includes the state capital Madison, officials are monitoring the climate lawsuits that have been filed by other jurisdictions, county corporation counsel Carlos Pabellón said. 

Pabellón said he expects the new political alignment of the Wisconsin Supreme Court to influence Kaul as he considers whether to sue the oil companies. 

“The fact that the makeup of the court will be different as of August, it’s going to have an impact,” Pabellón said. “That is always a factor in the analysis to bring any claim that is dependent on a new legal theory.” 

When Janet Protasiewicz joins the state’s Supreme Court on Aug. 1, there will be four liberal justices and three conservatives, creating a majority that environmental groups hope will rule in their favor on several pending cases. Protasiewicz, a Milwaukee County judge, won an open seat on April 4 with endorsements from several climate and environmental groups, defeating a conservative candidate in a nationally watched election. 

The litigation against oil companies has fallen to state and local prosecutors instead of private groups because citizens would have difficulty proving the companies directly harmed them, Carlarne of Ohio State said. 

In Wisconsin, counties are looking to the state attorney general to file suit because they lack the capacity to deal with “a complicated and long drawn-out legal adjudication,” Seery of Wisconsin for Environmental Justice said. In February 2022, the Milwaukee County Board passed a resolution calling on the state attorney general to initiate a lawsuit against fossil fuel companies. 

The litigating states and municipalities are trying a novel legal argument that the oil companies’ campaign to dismiss the dangers of climate change counts as deceptive marketing, said Karen Sokol, an environmental law professor at Loyola University New Orleans. The industry sought to seed doubts in climate science, after its own research accurately predicted devastating damages from climate change as early as the 1980s. 

“All states have pretty strong state deceptive marketing laws, both in the form of common law, tort law and consumer protection,” Sokol said. States have developed those laws since the 1960s as it became clear that false marketing of dangerous products could end up hurting millions of consumers, she said. 

Successful plaintiffs could receive billions of dollars in damages that could be spent making communities and infrastructure more resilient against climate impacts such as intensified storms, flooding and wildfire, Carlarne said. 

The money could also go for “climate reparations,” as communities of color and low- income neighborhoods are often exposed with the greatest harms from climate change, she added. 

“Climate change is fundamentally an equity question,” Carlarne said. “Those folks who are going to be most affected by climate change are the ones that are at least responsible for it.” 

Karl Racine, a former attorney general in Washington, highlighted the disproportionate impact of climate change on underprivileged communities when he announced the District of Columbia’s case against big oil companies (Greenwire, June 25, 2020). Racine said flooding from the Potomac and Anacostia rivers, heat waves and extreme weather have “severe impacts in low-income communities and communities of color.” 

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