Latest Climate Change Tort Lawsuit Brings Civil RICO Claims

Beginning in 2017, an array of state and local governments have pursued tort claims against major fossil fuel producers (e.g., the major oil companies) alleging, inter alia, common law claims of nuisance based upon the alleged contributions of these companies to climate change, and the concomitant impacts on the communities filing lawsuits.  (This blog has previously reported on certain significant developments among this array of lawsuits: Second Circuit Rejects Attempt by New York City to Impose Nuisance Liability on Oil Majors; Supreme Court Issues Limited Ruling in Climate Change Litigation; Potential Climate Change Litigation by the Federal Government in a Biden Administration.)  While some of these lawsuits have been dismissed, many are continuing, primarily in various state courts. 

Notably, the most recently filed climate change tort lawsuit, which was brought by a number of municipalities in Puerto Rico, brings--for the first time--civil RICO claims against major fossil fuel companies in connection with their alleged responsibility for climate change.  Specifically, the complaint focuses on the role of a trade association as constituting the "enterprise" through which the alleged RICO conduct occurred.  This represent a significant escalation in the tactics employed in these lawsuits, as the specter of civil RICO's treble damages--not to mention the stigma of being named as a defendant in a civil RICO lawsuit--exerts additional pressure on the corporate defendants.  That said, this complaint has not yet survived a motion to dismiss--and the courts typically examine civil RICO claims with particular scrutiny.  Nonetheless, this case--and the fate of the civil RICO claim and accompanying allegations--should certainly be closely monitored for future developments.