Litigation in the Fossil Fuel Divestment Movement

• Published date: 01 October 2017
• Date: 01 October 2017
• Author: Benjamin Franta
• DOI: http://doi.org/10.1111/lapo.12086

Litigation in the Fossil Fuel Divestment Movement

BENJAMIN FRANTA

The fossil fuel divestment movement has been described as the fastest-growing disinvestment

movement in history, and in recent years it has continued to expand. Despite its growth,

however, the movement has made little use of legal action, instead utilizing tactics of public

pressure and persuasion, and the future role of litigation in the movement is unclear. To consider

litigation’s potential role in the movement and the challenges it may face, I examine the f‌irst and

only case of litigation in the fossil fuel divestment movement thus far: Harvard Climate Justice

Coalition et al. v President and Fellows of Harvard College et al. (2015), in which seven

Harvard students (including the author) f‌iled suit to compel the university to divest its

endowment from fossil fuel companies. I examine motivations for f‌iling the suit in the context of

the broader fossil fuel divestment movement, the case’s history, and the challenges faced by the

suit, including arguments surrounding causation, particularization, representation of future

generations, limiting principles, and framing. I then discuss potential opportunities for fossil fuel

divestment litigation in the future. As the f‌ield of climate change law develops further, litigation

over fossil fuel investments could grow in frequency and importance.

I. INTRODUCTION

In the last decade, debates over climate change have moved increasingly to the courts,

driven by the perceived failure of international climate negotiations; the increasing

salience of climate change as a matter of justice, responsibility, and choice; and the use of

courts by social movements as forums to challenge existing policies and change social

norms and values (Peel and Osofsky 2015; Vanhala 2013; Vanhala and Hilson 2013).

Cases such as Massachusetts v EPA (2007) and Juliana v United States (2016)—along with

hundreds of others—have sought to inf‌luence both regulatory policy and public con-

sciousness (Burger et al. 2017). As the impacts of climate change continue to increase and

the gaps between climate change mitigation goals and actions continue to grow, courts

may become even more prominent “battlegrounds” in the f‌ight over climate (Burns and

Osofsky 2009).

The distributed, large-scale nature of climate change presents litigants with a number

of challenges, many of which have been discussed in the growing literature on climate

change law (Hilson 2013; Vanhala and Hilson 2013). The chain of causation—including

fossil fuel f‌inancing, production, transport, possible export, and end use—is suff‌iciently

long that establishing responsibility for climate change impacts at any given point in the

Noel Healy is thanked for valuable discussions, and Alice Cherry, Joseph “Ted” Hamilton, and Kelsey Skaggs

of the Climate Defense Project are thanked for providing feedback on the manuscript. The author discloses

that he was a plaintiff in the case described in this article and that he actively supports the fossil fuel divestment

movement.

Address correspondence to: Benjamin Franta, Stanford University Dept. of History, Building 200, Stanford

University, Stanford, CA 94305, USA. E-mail: bafranta@stanford.edu.

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doi: 10.1111/lapo.12086

chain can prove diff‌icult (such as in cases concerning scope 3 emissions arising from coal

mining in Australia [Peel and Osofsky 2015]). The scale at which climate change and its

solutions should properly be conceptualized and acted upon (e.g., at the scale of state or

private actors) is another matter of debate faced by climate litigation and is often a nor-

mative question as much as a practical one (ibid.; Osofsky 2009; Strauss 2009). Addition-

ally, contests over framing—such as whether litigants are performing a public service or

are acting as a nuisance, or whether climate change activists are social guardians or crimi-

nal extremists—are often prominent in the social and courtroom discourses surrounding

climate change litigation (Hilson 2012).

Despite the challenges faced by climate litigation, such actions have achieved some

policy-level victories to date, and even when they have not prevailed, they have advanced

the public dialogue about (and, one presumes, awareness of) climate change (Hunter

2009; Roderick 2009). Litigation synthesizes and operationalizes climate science by pre-

senting its major f‌indings, articulating arguments about its individual and societal conse-

quences, and offering solutions. In addition, opportunities for litigation by individuals,

associations, and various levels of government help to democratize climate policy (Hunter

2009).

Social movement actors can deploy climate change litigation to publicize claims, pro-

duce societal dramas, and change social norms (Peel and Osofsky 2015). The use of the

courts by social and political movements has been a practice in the United States for hun-

dreds of years, from the publicizing of American grievances against the English Crown in

the eighteenth century, to the abolitionist and women’s rights movements of the nine-

teenth century, to the civil rights movements of the twentieth century (Lobel 2004). In

such cases, the production of public debate may be as (or even more) important than the

legal outcome of litigation.

The fossil fuel divestment movement is an emerging wing of the global social and politi-

cal movement to address climate change. The divestment movement is composed of a

decentralized network of individuals and campaigns that work to persuade institutions at

all levels of society to reduce their f‌inancial investments in the fossil fuel industry. As a

norm entrepreneur within the climate discourse, the divestment movement seeks to rede-

f‌ine the relationship between personal choice and responsibility, particularly with regard

to investments and prof‌it-seeking behavior (Ansar, Caldecott, and Tilbury 2013). The

movement’s distributed grassroots structure and its diverse use of arguments and tactics

enhance its capacity to serve as an unpredictable element of the climate politics landscape

with the potential to catalyze unforeseen change. The movement began to grow in 2012,

and a 2017 survey of institutional investors found that about one-quarter had made sig-

nif‌icant changes to their portfolios to divest from fossil fuels (DeMasters 2017; 350.org

2017).

What is the potential role of litigation in the fossil fuel divestment movement, and what

challenges may such litigation face? To analyze this question, I examine the f‌irst and only

case of fossil fuel divestment litigation thus far: Harvard Climate Justice Coalition et al. v

President and Fellows of Harvard College et al. (2015), in which seven Harvard University

students (myself included) f‌iled suit to compel the Harvard Corporation (the highest gov-

erning board of Harvard University) to divest the university’s endowment from fossil fuel

companies. Documents for the case were f‌iled from 2014 to 2016, and the case was ulti-

mately dismissed based on the court’s ruling that the students did not have standing to

challenge the management of Harvard’s charitable assets. The court also rejected the stu-

dents’ proposed novel tort of “intentional investment in abnormally dangerous

activities,” which the students brought on behalf of future generations. As in many novel

climate cases, the court focused on doctrinal issues, such as standing, and never reached

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