Over the past decade, dozens of state and local governments have brought lawsuits against the fossil fuel industry, asking companies to pay for their role in deceiving the public about climate change and to pay their fair share of climate damages. The fossil fuel industry has responded by trying to get immunity from these suits by any means possible. Most recently, Senator Ted Cruz (R-TX) and Representative Harriet Hageman (R-WY) introduced federal legislation that would shield fossil fuel companies from responsibility for their role in the climate crisis, while state legislatures are introducing and passing similar legislation across the United States.
If passed into law, federal climate liability immunity legislation would place companies above the law and force communities harmed by the climate crisis to bear the full cost of injuries they did not cause. This legislation would also have broader ramifications for how justice works in America, as it would pave the way for broader corporate immunity for industry harm.
Liability Waivers Limit Access to Justice
Industry-wide liability waivers are few and far between right now, and for good reason. The civil justice system, in which individuals and entities can sue others for wrongdoing, exists to ensure that people who have been harmed can receive remedies and that those who are responsible pay their fair share. A liability waiver changes this basic premise by placing limits on the suits injured parties can bring against wrongdoers.
Liability Waiver Typology: Limited, Shifted, and Comprehensive
The few existing industry-wide liability waivers are unique, as they each address a specific issue and stem from a particular political environment. However, they can broadly be grouped into three types of waivers: limited, shifted, and comprehensive. If a climate liability waiver were to be passed into law, it would likely be the most comprehensive industry waiver the U.S. has ever seen, and it would eliminate the communities’ ability to seek relief for the harms they’ve suffered.
Limited Waivers
The U.S. has instituted several limited industry-wide waivers that put specific constraints on when, how, and for how much entities can pursue civil litigation in certain industries and circumstances. These include:
- Airplane Parts: Airplane manufacturers cannot be held responsible for defective planes or parts on smaller general aviation aircraft more than 18 years after the plane or part was first delivered. Aircraft manufacturers lobbied for this bill, and it passed in 1994. They argued that the long “liability tail” of aircraft was unaffordable and unreasonable.
- Passenger Rail Accidents: A 1997 law set a limit on the amount of money Amtrak can be held liable for in the event of a passenger train accident, with the current limit sitting at $295 million. This was part of a broader effort to make Amtrak, a quasi-public entity, financially viable.
- Public Health Emergencies: Since 2005, the Secretary of Health and Human Services has had the ability to provide companies responding to a public health emergency (such as those producing and distributing products during a pandemic) with immunity from certain liability claims, in order to spur public-private partnership during emergencies.
Shifted Waivers
In other cases, the U.S. government moves all or some of the liability from companies to the government, using a tax on company activities to create a fund. This system ensures that victims can still be compensated, but releases companies from litigating the cases or facing unexpectedly large losses, essentially sharing some or all of the risk across the industry.
- Vaccines: The National Vaccine Injury Compensation Program has been in place since the 1980s and is a “no-fault” system in which individuals who believe they were injured by a vaccination can petition a U.S. federal court for compensation. Compensation is paid out of a fund derived from taxes on eligible vaccines. This system was developed in response to vaccine production falling and prices rising as a result of liability claims.
- Nuclear Accidents: Liability for accidents from nuclear power plants is managed under the Price-Anderson Act of 1957. As with vaccines, the act created a “no-fault” system that, in the case of an accident, creates a fund by mandating every reactor company to contribute based on how many reactors they have. This system was developed to help commercialize nuclear power and ensure a quicker compensation system in the event of an accident.
- Oil Spills: The 1990 Oil Pollution Act authorized the Oil Spill Liability Trust Fund, which is managed by the Coast Guard and paid for by a tax on oil production. This fund is available to pay for emergency government response and to pay for damage claims that are not compensated by the companies. Notably, the Oil Pollution Act was passed in response to the Exxon Valdez oil spill and considerably strengthened oil company accountability for spills, as the fund acts more as a backstop than a full shift of liability away from individual companies.
Comprehensive Waivers
Comprehensive waivers carve out large swathes of activity for which companies in certain industries cannot be held accountable.
- Computer and Internet Services: The 1996 addition of Section 230 to the Communications Act of 1934 created a major change in liability for companies providing and using computer and internet services. The law means that these companies cannot be held liable for the content of others on their platforms, and cannot be held liable for good faith actions to restrict access to harmful content. For example, an internet service provider cannot be held responsible for the content of websites that a user accesses while using the internet. The goal of this legislation was to allow the internet to flourish while protecting children and users.
- Firearms Manufacturers and Distributors: In 2005, Congress passed The Protection of Lawful Commerce in Arms Act (PLCAA), which protects firearm manufacturers and distributors from being held liable for crimes that have been committed using their products. Public debate around immunity for gun manufacturers and distributors has continued ever since the law’s passage, with critics noting that if gun manufacturers and distributors cannot be held responsible for the harms caused by their practices, there is no other justice mechanism that victims can turn to.
Climate Liability Waiver: The Broadest Form of Immunity Yet
A climate liability waiver, as proposed by state and federal lawmakers and industry, would be the broadest form of immunity that an industry has yet received. Cruz and Hageman’s “Stop Climate Shakedowns Act” would ban any litigation concerning damages for climate change, including litigation focused on deceptive communications and marketing practices and the resulting damages from these actions. It would also ban climate superfund laws that require high polluters to pay into state funds for climate adaptation and cleanup.
A federal climate liability waiver would aim to preempt access to justice for almost all claims related to climate change, no matter how valid the claim. Scientists have shown that climate alteration is increasing the ferocity of heat waves, wildfires, drought, sea-level rise, and flooding. This is hurting local communities, and taxpayers and local governments are footing the bill. Fossil fuel accountability lawsuits seek to force fossil fuel companies to pay their fair share of the costs that they have imposed on these communities. A climate liability immunity law would prevent just relief.
Such a broad immunity waiver has no place in the American justice system. While climate accountability has become a highly politicized issue, the concept that individuals and communities can seek redress for injuries to their health, safety, and property rights through the judicial system is a shared belief across the political spectrum and can be applied to this issue in a straightforward manner.
Pandora’s Industry Immunity Box
Passing climate liability waiver legislation would set a dangerous precedent, as it’s not only the fossil fuel industry that’s clamoring for immunity. In the past year, the pesticide industry, artificial stone manufacturers, private prison contractors, and AI companies have all lobbied for sweeping legislative and/or administrative action to insulate themselves from the harms that their business activities wreak on the public.
Justice in America is based on the foundational concept that everyone can seek redress for harms they’ve suffered. No person is above the law, and no company should be, either. A climate liability waiver has no place in our legal system.
