Intended Injury: Transferred Intent and Reliance in Climate Change Fraud

Abstract

Fossil fuel companies misled the public for decades by hiding the causes and dangers of global warming. As a result, those companies were allowed to continue extracting and selling oil, gas, and coal. The burning of these fossil fuels is causing the current global warming. An individual harmed as a result of these deceptions should be able to bring a fraud claim against the fossil fuel companies that deceived the public. First Amendment and standing issues present significant obstacles to such claims. This Article acknowledges but does not directly address these concerns. Moreover, there is reason to believe the standing issue will, in time, be resolved in favor of those harmed by global warming. Setting the First Amendment and standing issues aside, however, plaintiffs in climate change fraud cases still face far greater difficulties in proving the elements of intent and reliance than do typical fraud plaintiffs. Accordingly, even if a fraud claim were allowed to proceed against a fossil fuel company, the scale in the case would be tipped heavily in favor of corporate defendants. This Article argues that a transferred intent doctrine should be applied in climate change fraud cases. The application of such a doctrine is supported by longstanding tort policy.

Keywords: climate change litigation, fraud, torts, environmental law, law and science, oil & gas, natural resources