Can The Law Drag Fossil Fuels Into Greener Pastures?

The law and fossil fuels: as lawyers in courts around the world battle it out over the future of non-renewable energy sources – not to mention the future of the planet – Rachel Donald asks whether it is time for the legal industry to face up to its own oily ethics?

The Oily Side Of The Law

‘Find the dirt, find the damage, and find the right legal strategy,’ says Ben Franta, founder of the Climate Litigation Lab at Oxford University. He was enjoying a quiet Sunday evening before I called to ask exactly how – and if – the legal industry can stop the fossil fuel industry heating the planet beyond a survivable limit. But Ben doesn’t mind – he gave up another life as an archaeologist on a quiet Greek island to tackle these questions.

He is one of many throwing themselves at what is commonly described as an existential crisis. The planet is in the throes of the sixth mass extinction event, we broke past the 1.5C degree heating limit set by the Paris Agreement last year, our waterways are either choking with plastic or drying up, crop yields are down across the world, wars are being fought over resources, our oceans are acidifying and our geopolitical world order is reshuffling, with both East and West embracing totalitarianism. This is a world in crisis and its roots began thousands of years ago with our first political hierarchies. There’s a lot we must fix. For now, though, we need to stop putting fuel on the fire.

The political strategy around the world is the opposite of that very sensible suggestion. Fossil fuel production is at an all-time high and private energy companies are planning on extracting even more in the future. Governments in the Global North, like our own, are still dramatically subsidising the world’s most polluting industry to the tune of trillions of dollars and petrostates are planning to get entire continents hooked on fossil fuels. Rather than transitioning away from oil and gas, we’re using more than ever, and renewable energy is merely adding to the total energy production.

‘Fossil fuel companies have a lot of political power,’ says Nine de Pater, one of the lawyers for Milieudefensie who successfully sued Shell in 2021 in the Netherlands. The legal team, which included scientists, showed that Shell’s climate policies did not align with climate science, and argued that the company is knowingly causing danger by contributing significantly to the climate crisis with its CO2 emissions. The court agreed and ordered Shell to reduce its emissions by 45 percent compared to its original 2019 target, starting immediately. But just last year Shell, along with most companies in the fossil fuel industry, threw out its pledges and declared it is no longer planning on cutting oil production.

‘Shell is taking steps backwards,’ Nine tells me. ‘That’s very worrying and should not be accepted.’ But even though Shell is not complying, nothing can be done until the 2030 deadline, at which point the damage to the climate and planetary stability will be baked in. Shell faces heavy fines if – when – it fails to comply with the court’s orders. Paying damages won’t, of course, undo harm caused by its emissions, but it would ricochet through the finances of its shareholders. ‘There can be very serious financial consequences,’ says Nine. ‘It’s important for shareholders and stakeholders to know the risk that Shell is taking by not complying to this verdict.’

The energy giant has been fighting legal battles on multiple fronts. In the UK, a team from ClientEarth took Shell’s board to court as concerned shareholders. They argued that Shell was threatening the company’s future by not moving away from fossil fuels fast enough and were backed by major institutional investors, including the largest workplace pension scheme in the UK – an excellent example of shareholders who are at major risk by Shell not complying with the Dutch court verdict. The legal team targeted the company directors who are ‘legally obliged to ensure that their actions today do not compromise the financial stability of their companies tomorrow’.

‘The writing is on the wall for fossil fuels,’ says Connor Thompson, a lawyer on the case. ‘As global demand for oil and gas diminishes, companies reliant solely on fossil fuels face an uncertain future.’ But the British court didn’t agree, instead saying that ClientEarth was not taking into consideration the range of ‘competing considerations’ Shell’s directors take into account. ClientEarth, of course, does not agree: ‘The law must allow for directors to be held to account when their actions put their own company, let alone the planet, at risk.’

The judge’s ruling is emblematic of the legal climate in the UK, where it is easier to prosecute a climate activist than sue a fossil fuel company. Thanks to the policy recommendations of a shadowy collective of global think tanks called the Atlas Network, which are behind the sweeping trend to criminalise activism around the world and brand activists as terrorists in the press, Rishi Sunak’s government has deliberately targeted citizens while handing out more licences for oil and gas exploration in the North Sea. The public prosecutor is lining up hundreds of citizens for their day in court while criminals engaging in ecocide walk free. In response, some lawyers are refusing to both prosecute these activists and work for fossil fuel companies. The group, Lawyers Are Responsible, is quick to point out the complicity of the legal industry, without whom the fossil fuel industry could not function. Between 2017 and 2023, leading law firms globally facilitated $1.63 trillion in fossil fuel transactions. ‘It’s just a scientific fact that those fossil fuel companies are doing huge amounts of damage to the planet and to all the people and nature on it,’ says Ben. ‘And more lawyers are helping the industry than suing the industry.’

It’s disappointing – although perhaps not surprising at this stage – that the responsibility for a brighter future is falling to self-organised groups of concerned citizens. Thankfully, the historical precedent for acting against harmful industries lies in civil courts rather than criminal ones, Ben says. Still, it begs the question of exactly how much we can expect from the legal industry if its power is so closely tied up with state power, which is so closely tied up with fossil fuel power. Who will the state side with if these cases threaten their fuel source? What would that do to the law itself? Will states ever sue the source of their own power?

‘Great question,’ laughs Ben. ‘Probably not – but that doesn’t mean it’s impossible.’ Indeed, there are two dozen government-led suits against the fossil fuel industry in the United States. One of the most high-profile cases is the State of California vs Exxon Mobil, Shell, BP, ConocoPhillips, Chevron, as well as the domestic oil industry’s biggest lobby, the American Petroleum Institute. However, Nine warns that – unlike the Dutch suit, which sought to reduce emissions – California is seeking financial damages from these fossil fuel companies: ‘It shows the two sides of it, the dependency on fossil fuels on one side and also that fossil fuels cause problems.’

This, ultimately, is the crux of the problem. We need to stop burning fossil fuels immediately. We cannot do so immediately. There is no debate, but the discussion is complex. Tackling the problem demands every tool available to us and law is just one of them. ‘The legal system can really enforce change, but it is not accessible to everyone as it is expensive and takes a lot of time,’ says Ben. ‘We don’t have a lot of time. We can use it as an accelerator of change but it is not the silver bullet.’

Ultimately, challenging the fossil fuel industry is a reckoning for the legal industry, whose murky ethics have facilitated trillions of dollars of planetary damage. ‘Everyone deserves representation,’ says Ben. ‘But not everyone deserves a co-conspirator.