Energy & Sustainability Litigation Updates — January 2023
Litigation & Regulatory Update
Climate Change Litigation: Beginning in 2017, an array of state and local governments began pursuing claims against major fossil fuel producers — particularly the major oil companies (Chevron, Exxon, BP, Shell, and ConocoPhillips) — alleging common law claims of nuisance based upon the contributions of these companies to the impact of climate change. In late November 2022, a climate change tort lawsuit was brought by a number of municipalities in Puerto Rico, which — for the first time — brought civil RICO claims against major fossil fuel companies in connection with their alleged responsibility for climate change. Specifically, the lawsuit focused on the role of a trade association as constituting the “enterprise” through which the alleged RICO conduct occurred. Aside from this development, there have been relatively few substantive events in the various pending climate change tort litigations over the past few months, with procedural issues continuing to be litigated and as many of the cases proceed in state court.
SEC Enforcement: The SEC has continued to pursue enforcement actions targeting “greenwashing,” which has been identified as one of the SEC’s major enforcement priorities. (For example, a major investment bank recently settled an administrative proceeding concerning allegations of “greenwashing” and paid a multimillion-dollar fine.) This regulatory focus has been the subject of significant press and has even been highlighted by ratings agencies (which have also noted the risk of enforcement action along similar lines by European regulators).