The Road to Paris Runs Through Delaware: Climate Litigation and Directors’ Duties

Abstract

As political and regulatory battles over climate change rage in the United States, and the Trump Administration unwinds regulation on climate change, the directors of some of the largest, fossil fuel corporations, often referred to as “carbon-majors”, are facing a barrage of climate litigation claims. This is the second time directors of these corporations have faced litigation. The first wave of litigation against carbon majors failed for a number of reasons, including judicial reluctance to engage with the complex issue of climate change. However, climate litigation is evolving. In this second wave of litigation judges have started to engage more directly with new scientific processes that link specific industry polluters to global climate impacts. Litigants are also becoming more creative, attempting to avoid federal preemption arguments encountered in the first wave by focusing on state-based common law and statutory claims. The number and scope of claims has also increased, with litigants moving beyond tort-based claims to employ diverse causes of action, including corporate law. This second wave of litigation will have two implications for corporate law fiduciary duties. First, the litigation highlights the bidirectional nature of climate impacts and risks. Corporations contribute emissions to the atmosphere which increase the severity of climate-related impacts. Those impacts, in turn, pose significant risks to corporations themselves. Second, the litigation elevates the risk profile of climate change from an ethical concern to a significant financial risk that directors are legally obligated to consider in order to comply with their fiduciary duties under corporate law. This broad but sudden shift in litigation trends changes the risk equation for directors on climate change.

Keywords: Climate Litigation, Carbon-Major Corporations, Directors' Duties