Extracting justice: how Sue Big Oil could win in B.C.

Who is going to foot the bill for drawing down greenhouse gas emissions and adapting our communities to a rapidly warming world? This is the burning question at the heart of climate politics, to which the Sue Big Oil campaign offers a clear and compelling answer: the polluters must pay. 

Sue Big Oil was convened by West Coast Environmental Law in 2022, and has since been taken up by a broad coalition of advocacy groups and ordinary British Columbians, including B.C. chapters of the Council of Canadians. The campaign’s foundation is the polluter pays principle, which holds that companies responsible for contaminating land, water, or air should bear the cost of remediation. It’s a simple and intuitive argument that most of us have understood since childhood—you make a mess, you clean it up.

To apply the polluter pays principle to climate change, Sue Big Oil aims to bring a class action lawsuit against fossil fuel companies on behalf of B.C. municipalities. As things currently stand, oil and gas companies are enjoying record profits in part because they don’t pay for the consequences of their business model, like the deadly heat dome and atmospheric river floods of 2021. These so-called externalities simply don’t appear on their balance sheet. The lawsuit would change that by compelling the fossil fuel industry to pay their fair share of the costs of climate disaster relief in communities like Lytton and Abbotsford. But it would also go a step further, seeking funds to pay for the necessarily rapid and far-reaching shift to a low-carbon economy. With global heating trends currently on track to exceed 1.5 and even 2 degrees, it’s past time we got serious about funding renewable energy, regenerative agriculture, building retrofits, and emissions-free public transportation.

While the campaign is currently focused on municipalities in B.C. because of the province’s favourable rules governing class action lawsuits, if successful it could inspire a wave of legal action against Big Oil across Canada and beyond. For that to happen, activists in communities throughout British Columbia will need to build massive public support and convince a critical mass of city councillors to sign on. There is much work to be done. We think that Sue Big Oil has the potential to become a major initiative among B.C. members of the Council of Canadians. In the analysis that follows, we outline some of the reasons to sue Big Oil and why we think B.C. Council members could play a leading role.

A matter of urgency

To start, climate change is the fundamental global issue and the greatest challenge of our time. According to leading climate scientists like Will Steffen (who passed away earlier this year), climate change threatens the existence of organized human society, and “we are already deep into the trajectory towards collapse.” As the climate system grows hotter and more unstable, existing injustices will be magnified many times over. Heatwaves, droughts, and superstorms threaten key agricultural regions, putting the world’s food supply at risk. Whether caused by unbearable temperatures or rising sea levels, some major population centres are forecast to become uninhabitable over the coming decades, pushing hundreds of millions of climate refugees to migrate by mid-century. 

Carbon emissions hit a peak of 420.99 parts per million last year—a level not seen for millions of years, when sea levels were up to 25 metres higher, and large forests grew on what today is Arctic tundra. Unless we bring that number down, the prospects for near-term social justice and long-term survival are increasingly dim.

With governments continuing to spew progressive climate rhetoric while doing nothing to stop the expansion of new fossil fuel projects, we need every tool at our disposal to achieve meaningful emissions reductions. Simply bringing the lawsuit before the courts could help deter fossil fuel investors and insurers by raising the spectre of a huge settlement. And if we win, the results could be revolutionary.

Is Big Oil really responsible for climate change?

As the Sue Big Oil campaign has begun to build momentum, we’ve encountered different reactions from British Columbians hearing about the lawsuit for the first time. For some, it’s immediately clear that oil and gas companies should help to pay for the infrastructure costs of climate mitigation and adaptation. But for others, there appears to be some oversights in the campaign’s logic. Don’t we all use fossil fuels in our cars and homes, and rely on consumer products that are produced and transported with fossil fuels? And aren’t the oil companies the ones funding next-generation technologies like carbon capture and storage that we need to cut emissions?

It’s true that we are all implicated in the fossil fuel economy, sometimes by choice but most often by necessity. But as individuals, we face real limits in our ability to transform the energy infrastructure and built environment of the world that we inherited at birth. Many of us make the most of the agency we do have by reducing our reliance on fossil fuels, limiting air and car travel, cutting out meat consumption and reducing waste. Those who can afford to do so might purchase an electric vehicle or install a heat pump in their home, but these individual actions are expensive and out of reach for many. An activist campaign like Sue Big Oil shifts the focus to collective action and community power—the key ingredients of large-scale political-economic transformation.

Responses to climate change that focus on individual behaviour and consumer choice overlook another crucial point. Choices are constrained by supply, and in this case, the suppliers have been doing everything they can to deepen our reliance on their product. While individuals worry about how to reduce their carbon footprint, oil and gas companies work tirelessly to expand supply, investing in exploration and building a vast network of new pipeline infrastructure that locks in carbon emissions for decades to come. To bring down emissions, we have to stop oil at the source.

Then there’s the matter of profit. Ordinary people pay twice for the privilege of using fossil fuels—once for the price of gas or oil inputs, and again for the health and climate consequences of the subsequent emissions. By contrast, fossil fuel companies enjoy vast government subsidies that enable their private control over a commodity that the entire world depends on, and the resulting profits fuel their outsized political power. That power in turn allows Big Oil to continue privatizing their government-guaranteed profits while socializing the costs. This is junk economics, and it needs to be scrapped. Instead of subsidizing oil companies and letting them off the hook for carbon pollution, Sue Big Oil proposes that they pay their debt to society. From there, we can start to glimpse other political possibilities, like bringing the oil companies under public control so their assets can be repurposed to fund the transition away from fossil fuels.

Recent investments in carbon capture and storage in the Canadian oil sands might seem to suggest that all this is unnecessary. Could Big Oil be changing its ways? Our answer is a resounding no. Despite its much-touted promise, carbon capture is not a climate solution. The technology is unlikely to be deployed at anywhere near the scale required to make a dent in emissions. Even worse, carbon capture provides the appearance of climate progress while enabling the expansion of oil and gas production, further delaying the necessary transition away from fossil fuels. Climate science is unequivocal on this point: to salvage a livable climate, we must end the extraction and combustion of fossil fuels, not prolong it by capturing a small percentage of emissions.

Decades of disinformation, denial and delay

If you’re still not convinced that B.C. municipalities should sue Big Oil, consider their decades-long campaign to prevent the world from taking action on climate change. We now know that Exxon knew about the climate consequences of its business model since at least 1977, when its in-house scientists produced climate models which showed that continuing to burn oil and gas would unleash devastation around the world. Those models were remarkably accurate, closely aligning with the models used by the world’s leading climate scientists today. But Exxon suppressed its own research, claiming in repeated public statements that climate science is inconclusive.

Hiding research is just the tip of the iceberg. Not only did Big Oil pretend not to know that its product destabilizes the climate, it waged a sophisticated campaign to convince the public that climate change is just an unproven theory invented by a few eccentric scientists. Funded by fossil fuel companies, industry think tanks like the Heritage Foundation and the American Enterprise Institute worked relentlessly to stymie climate legislation. Their representatives wrote op-eds, appeared on countless news segments and lobbied politicians to make sure climate change wouldn’t interfere with the world’s dependence on oil and gas.

At first, Big Oil’s public relations campaign hinged on outright denial. Industry spokespeople argued that climate change doesn’t exist, or that human activities have no influence on the climate. When outright denial became difficult to sustain, they shifted their tactics to foster doubt instead. Cunningly, their representatives would acknowledge that climate change might be a threat, but would go on to argue that it would be rash to cut emissions before the science is settled. When the scientific consensus eventually made doubt unconvincing, they shifted focus yet again to promote delay—the dominant paradigm in climate politics today. While climate change is now broadly recognized as an urgent problem, the radical action needed to contain it is endlessly put off to some future date. We’re told that technological solutions are just around the corner, and we can safely extract and burn oil and gas in the meantime.

Big Oil’s conspiracy of denial, doubt and delay is well documented in several excellent studies, including Geoff Dembicki’s recent book The Petroleum Papers and Naomi Oreskes and Erik Conway’s Merchants of Doubt, which inspired an engaging documentary released in 2014. The latter study shows that Big Oil copied the playbook first developed by Big Tobacco to shield its destructive product from regulation, in some cases even employing the very same scientists and public relations experts.  

Why we think we can win

As it stands now, oil and gas companies are shielded from the consequences of their actions by the Canadian political class. According to the Canadian Centre for Policy Alternatives, representatives of the fossil fuel industry meet with federal officials an average of over six times per workday, and each one of those meetings is an opportunity for industry lobbyists to make the case for government subsidies, lax regulation, and weak emissions targets. In a political system thoroughly captured by fossil fuels, even staunch environmentalists like Environment Minister Steven Guilbeault wind up doing the bidding of Big Oil.

To overcome the fossil capture of our political system, the climate movement must fight on all fronts to rein in the power of oil and gas companies. As activist campaigns like Flood Parliament raise the demand for a livable climate and a just society at the national level, we see an opening for Sue Big Oil to support that work by targeting municipal representatives.

Municipal politicians have far less power to tax or regulate fossil fuel companies than their provincial and federal counterparts, but many of the infrastructure costs of adapting to climate change fall squarely on the shoulders of local governments. As the bills start coming due, the case for making Big Oil pay will become increasingly clear. Even fiscally conservative councillors can see the wisdom in demanding that oil and gas companies pay their share of climate costs rather than passing those costs on to residents via property taxes and other levies. Without the machinery of the provincial and federal parties dictating the limits of what they can say, local politicians may be more receptive to the arguments of activists, especially when we have both evidence and numbers on our side. The better organized we are, the more persuasive our case will be.

Still sound far-fetched? Class action lawsuits targeting corporate malfeasance have succeeded before, and there’s good reason to believe Sue Big Oil can be successful too. Big Tobacco knew their product causes cancer in the 1950s, around the same time that scientists working for the fossil fuel industry began to understand the implications of adding billions of tonnes of carbon dioxide to the atmosphere each year. After misleading consumers and regulators for decades, Big Tobacco is finally on the hook for billions in moral and punitive damages thanks to a successful class action lawsuit. The tobacco companies perfected the narrative of denial, doubt and delay now pushed by Big Oil. It’s time to hold it to account.

We should be emboldened by the recent example of Shell vs. Friends of the Earth in the Netherlands. In 2021, a Dutch court ruled in favour of a coalition of 17,000 individual and organizational plaintiffs, who brought legal action against Shell for their role in worsening the climate crisis. The court ordered Shell to reduce its carbon emissions by 45 per cent over the next ten years. With this international precedent in place, the case to Sue Big Oil rests on firm footing.

Recent advances in attribution science allow researchers to pinpoint the role of climate change in extreme weather events, as well as the relative contribution of particular governments and corporations to climate change. Developments in this field also bode well for successful legal action.

Ultimately, the fate of the B.C. class action lawsuit will be determined by the power of our movement. We need to build and sustain Sue Big Oil organizing committees in communities around the province. Those committees will organize public educational events, build coalitions with local organizations, knock on doors, gather signatures and hold rallies to show that the majority of people in this province are ready for bold action on climate change. It’s this kind of people power that will convince local governments to join the class action lawsuit. And it’s precisely this kind of power that Council of Canadians members know how to build.

Written with the support of Robert Hackett