An Inconvenient Lie: Big Tobacco Was Put on Trial for Denying the Effects of Smoking; Is Climate Change Denial Off-Limits?

Dubats, Elizabeth | April 1, 2012

Plaintiffs have made several notable attempts to bring nuisance, trespass, and negligence suits against major sources of greenhouse gas emissions for climate change related injuries. While climate change is a widely recognized environmental issue, courts have refused to recognize it as a basis for a valid cause of action in tort, finding either petitioners lack standing to bring the claim, or that the claim raises political questions that should not be addressed by the judiciary. Some more recent climate change tort claims have also included allegations of fraud on the part of the hydrocarbon industry for actively perpetuating misinformation about climate change. These claims have interesting parallels in fraud claims brought against tobacco companies regarding the dangers of smoking. These commonalities are relevant to the extent that mass fraud claims against the tobacco industry, unlike similar claims against the petroleum industry, were recognized as justiciable. This raises the question of whether there is a legally relevant difference between the two claims of fraudulent activity that would justify justiciability in one instance and not the other. This Note argues there is not. Both claims essentially allege fraud based on the denial of the scientific cause of the harm, and both claims target large contributors to a scientifically complex chain of causation. To the extent that climate change is a more or less scientifically sound chain of causation is a scientific question, not a political one, and is within the competency of the courts to resolve.