Climate Change Related Litigation – A New Challenge for Communicators

March 8, 2024

In January of 2020 I flew across the Grand Bahama Island (Bahamas) with a chartered plane to inform myself about the impact of the devastating hurricane Dorian. It was a horrific scene of destruction. This hurricane, which hit the vulnerable island state with unprecedented force and size, was officially classified as a category 5 hurricane on the Saffir-Simpson Hurricane Wind Scale ( SSHWS) developed in 1969. In truth, however, this monster eclipsed any common-place categories. The climate experts agree: The outdated evaluation scale urgently needs to be extended. And: We will experience more of these hurricane monsters in the future.

We flew across an area in which the Norwegian company Statoil maintains a large crude oil storage facility. Hurricane Dorian tore the gigantic lids off the tanks. Crude oil leaked out of these and contaminated water and soil. Drinking water and coral reefs were at risk. Residents and NGOs then rightly wondered whether the Norwegian company, with the knowledge that the Caribbean storms have been getting stronger for years due to climate change, had actually done every feasibly thing to appropriately secure the plant.

Polar caps are melting, sea levels are rising, storms are becoming more severe, hurricanes stronger and summers hotter. Drought is spreading and glaciers are disappearing. The effects of man-made climate change cannot be denied. Two questions arise in this context: 1) Who bears the responsibility for climate change and its consequences? 2) Have states and companies prepared to protect the population in case (industrial) facilities are destroyed by an extreme climate events like hurricane Dorian?

Climate activists are focusing on certain industries (‘carbon majors’ such as the oil and cement industries) as climate change causers. These are increasingly being put in court for this. For example, five cities and three counties in California are currently suing major oil producers, including Chevron, Exxon, BP, ConocoPhillips and Shell. Just recently Hoboken (New Jersey) joined the growing list as the first Eas Coast City. According to the complaint, the sued companies are said to be the main causes of global warming and climate change. They are now to pay the plaintiffs several billion euros in damages for the consequences.

Huge claims for compensation

However, not only alleged causers of climate change have to increasingly answer to the courts, but also companies, states or organizations that have failed to secure their plants and areas against the increasing challenges of climate and environmental change and to protect the people living in their vicinity. In Germany, for example, the organization ‘Deutsche Umwelthilfe’ successfully took legal action against large German cities in the course of the diesel exhaust scandal to enforce driving bans against diesel drivers as dirty diesel exceeds the specified nitrogen levels.

So this is not about climate and environmental activists who are now increasingly shifting their battles from the street to the courtroom. We are talking about a very special type of climate change lawsuits, which have long been taking place not only in the USA and which now represent a serious challenge both for the defending parties and the courts involved. We are talking about claims for damages that amount to gigantic sums.

The world is burning and law firms are on fire

The large law firms, especially Anglo-Saxon ones, have prepared themselves for the new ‘class of action’. Against this backdrop, author Samantha Stokes noted a change in the legal industry in January 2020: ‘As the World Burns, Law Firms Are Responding With Climate-Focused Practices,’ is how she titled her market analysis on / The American Lawyer. A study by the London School of Economics underpins her findings: The number of legal disputes related to the consequences of climate change has risen immensely around the world. Until May 2019, the Grantham Institute was able to identify 1,023 cases in the USA alone, mainly driven by NGOs, civil movements and individuals.

This new legal playing field attracts not only lawyers but also other interested players: litigation funders and litigation PR experts.

New field for litigation PR

As crisis and litigation PR communicators, we are thus not only faced with new challenges, but also with new opportunities and a thoroughly attractive communications field. Especially when we fight on the side of the victims. Then everything appears to be very easy: As a rule there are very many injured parties (mass!). The sympathy of the media and the public are considered a given (media! hearts!). In most cases, the David-versus-Goliath principle should work, and we are definitely on the side of the ‘good guys’ (karma points!). Given such a setting, there is little left for the opposing side to do other than retreating to the legal part in order to at least score a few points in the courtroom.

But it won’t be that easy for us communicators in these climate-change-related cases. Tobacco and asbestos litigation and diesel lawsuits have made companies smarter. They have refined their instruments, readjusted their tactics and do not shy away from hard-hitting smear campaigns against the plaintiffs. That is something worth noting. Excellent crisis and litigation PR specialists also work on the opposing sides. Volkswagen, for example, has responded to the flood of lawsuits and has now established its own litigation PR department.

Challenge for communications

Another thing worth noting: Processes cannot be won on sympathy alone. Not even in the court of public opinion. The new subject area is emotionally charged and therefore also very volatile. The mood can easily shift. The trick is to ensure that clients who put themselves on a high moral pedestal (or are placed there by us) also keep their balance and do not fall.

To avoid all of this, we must also provide hard, reliable facts that offer a strong, viable foundation for the lawyers’ deliberations. Yes, I do believe that we communicators need to leave our desks to go into the field and acquire case-relevant information that we can then process for the lawyers who work with us (case intelligence).

We must find out what the other side is planning. We need to talk to the affected people. We have to find out how the other side is trying to influence the media. And because we as communicators know about the power of images in such confrontations and can think visually, we must help to procure case-relevant images. We communicators in particular can obtain such essential information, evaluate it on the basis of our professional background and introduce it promptly into the legal process. Naturally, this is generally the case in any high-profile legal dispute, but this is all the more true when a large mass of aggrieved parties and observers, perhaps even the entire case, is floating in a sea of emotions.

Danger: ‘overexposure’

Something that could also happen: Public interest in climate cases could dwindle if the media drives too many such cases. This is called ‘overexposure’, a term that comes from the world of celebrities and models. At a certain point you can no longer stand seeing them after being exposed to them too often on too many media channels. This is where consistent creativity in communications and the willingness to think outside the box helps gain the necessary attention.

Climate-related lawsuits open up a new, broad and attractive field for us crisis and litigation PR experts. With the existing instruments at our disposal, we should be well equipped for the first round. We have to reposition ourselves in each subsequent round.

And by the way: I haven’t been able to find out yet whether the Norwegian company Statoil was ever sued for the oil spill on Grand Bahama. Nor was I able to find out whether any money went into a veil of silence. I do know one thing, however: In the future, cases such as these will be treated quite differently and companies like Statoil will need to prepare for the worst should they have ignored the consequences of climate change.

Uwe Wolff

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