Catching Up with Puerto Rico's Climate Lawsuits Before 2025 Hits

With a climate change denier president and a governor who supports the climate change denier president, the future of Puerto Rico’s multiple climate lawsuits against fossil fuel companies like Exxon, BP, and TotalEnergies is uncertain. "It's an earthquake," a law professor told POLITICO about President-elect Trump's effect on climate litigation. Jenniffer González Colón, Puerto Rico's governor-elect, has not publicly commented on the lawsuits and an article about her approach to climate policy has no mention of them. However, she did mention she would "balance economic development with environmental protection." (Unlikely given that Puerto Rico has historically favored construction over the environment).

Heading into 2025, I will make sure to keep an eye on how the climate lawsuits progress and periodically update Heavy Weather whenever there is an important development.

Here’s a little primer on these three cases and where they’re at:

The most recent case, Commonwealth of Puerto Rico v. Exxon Mobil Corp. et al. (3:24-cv-01393), is a lawsuit from the archipelago’s Department of Justice against the fossil fuel industry that was filed in state court and alleges the companies violated environmental and public nuisance laws. ExxonMobil, Chevron, Shell, and their Puerto Rican subsidiaries are some of the companies being sued. The lawsuit also lists the American Petroleum Institute (API), Global Climate Coalition (GCC), and the Information Council for the Environment as “associations and front groups of the fossil fuel industry” not as defendants themselves.

Puerto Rico’s Department of Justice is seeking $1 billion in damages to cover the costs of protecting and restoring infrastructure, land, assets, natural resources, and other damages to Puerot Rico “caused by the Defendants over decades for failing to warn about defects in its fossil fuel products and for its Deceptive trade practices in the marketing and promotion of oil, coal, and natural gas.” 

“For decades, the Defendants, important members of the fossil fuel industry, have deceived consumers and the public about climate change. Since at least the decade of the 1960s, their own scientists have systematically reached the conclusion that fossil fuels produce carbon dioxide and other greenhouse gas contaminants that can have catastrophic consequences for the planet and its inhabitants," alleges the complaint, which was originally filed in Puerto Rico's Court of First Instance.

Although popular concern about climate change did not reach the public until about the 1970s, fossil fuel companies knew about the devastating effects of their products because of internal research and studies since at least the mid-1950s, according to documents first published by Rebecca John of DeSmog. The documents reveal that researchers had identified Los Angeles smog as a result of hydrocarbon pollution from cars and refineries. Meanwhile, Exxon had “predicted global warming correctly and skillfully” in private and academic circles since the late 1970s, according to an analysis published in Science.

However, these companies spent decades and billions of dollars trying to prove the opposite to the world. While only mentioned in passing in the complaint, a 1998 leaked document — nicknamed the “Victory” memo — outlined how fossil fuel companies can confuse the public discourse on climate change through tactics such as hiring independent scientists to question the findings of climate change studies and providing a “steady stream” of op-ed columns to muddy the waters. “Victory will be achieved when average citizens ‘understand’ uncertainties in climate science,” reads the memo from the API.

Fossil fuels are the largest contributor to global climate change, accounting for 75% percent of global greenhouse gas emissions and nearly 90% of all carbon dioxide emissions, according to the United Nations. 

Small Islands Developing States, like Puerto Rico, are on the “frontlines of climate change” because of their lack of resources, dependence on imports, geography and limited access to climate finance. Hurricanes Irma and Maria in 2017 — which are specifically cited in the complaint — caused nearly $90 billion in damages and over 4,000 deaths. The archipelago has still not recovered. 

“As a result of the lies and deception of the Defendants and the fossil fuel industry, the Commonwealth of Puerto Rico has incurred or will incur billions of dollars in costs to clean up climate change-induced disasters, such as Hurricanes Irma and Maria, and is anticipated to suffer additional substantial even more costly, damages in the future,” reads the lawsuit.

Current climate policies put the world on track for a temperature increase between 2.6°C and 3.1°C over the course of the century, according to the 2024 Emissions Gap Report by the United Nations Environment Programme. If global warming continues unabated, it is likely Puerto Rico will be the target for even more devastating climate disasters.

While the lawsuit was filed in state court, the Defendants quickly filed a motion to remand the case to state court, which started what will surely be a lengthy process in Puerto Rico’s federal court. The fossil fuel industry argues that — because they developed a lot of their fossil fuel production under the auspices of the U.S. Military — the case should be heard in federal court and the case should have been brought up under other federal lawsuits filed by Puerto Rico’s municipalities (more on that shortly). 

Alongside the motion to remand, they also filed 94 separate exhibits. One was titled “Priest Declaration,” which I really hoped was a literal title. But, alas, it was just an affidavit by a policy analyst for BP with the surname “Priest,”

Puerto Rico’s DOJ has argued that the case should remain in state court because all the arguments the fossil fuel industry cites in their motion to remand have already been disproven in other cases, such as Rhode Island v. Shell Oil Prods Co.. “Defendants know this because a subset of them lost in Rhode Island,” reads the motion. The DOJ says that the fossil fuel industry’s attempt to remand “serve[s] no purpose but delay.”

The latest motion in the docket was the fossil fuel industry’s opposition to the DOJ’s motion to remand, which essentially rebuffs every point made in that motion, and also requested oral arguments be heard. (I'm particularly interested in hearing the arguments considering that similar climate lawsuits have failed to move from state court to federal court.)

Climate RICO

The first and second of these cases are more or less the same, to the point that the Defendants have called the second a “copycat” of the first. They are both Racketeer Influenced and Corrupt Organizations (RICO) Act civil lawsuits brought in federal court that claim the fossil fuel industry “colluded” to publicly downplay the risks posed by their products on climate change, which caused the devastating 2017 hurricane season.

Municipalities of Puerto Rico v. Exxon Mobil Corporation et al.(3:22-cv-01550) — which started with 16 municipalities but later ballooned to include 37 — is a class-action RICO case against  Exxon, Shell, Chevron and about 10 other companies. According to the lawsuit, the companies mobilized to create the GCC, which funded a “marketing campaign that continues to this day” which violated federal and Puerto Rico consumer protection rules, racketeering statutes and common law. GCC was an outspoken industry group that opposed policies to reduce greenhouse gas emissions that operated from 1989 to 2002, according to DeSmog.

“Defendants reduced their deception to writing in a “Victory” memo in the spring of 1998 and continued to collude by investing billions into a fraudulent marketing scheme to convince consumers that their fossil fuel-based products did not – and would not – alter the climate, knowing full well the consequences of their combined carbon pollution on Puerto Rico,” reads the complaint.

United Nations Secretary General António Guterres recently called oil and gas giants the “godfathers of climate chaos” and called for a tobacco-style ban on fossil fuel ads to help stop global warming. Thousands of journalists have covered this story in some form, but one of my favourite breakdowns of it all is the third season of Drilled. They also recently did an episode on the “Mad Men of Big Oil.”

Two years after it was first filed, the case is yet to get in full gear and the municipalities demanded a trial by jury. The defendants have filed multiple motions to dismiss and a bunch of documents they claim back up their arguments. A case like this is unlikely to get resolved promptly, especially because it would set a precedent that would lead to a waterfall of lawsuits against oil and gas companies on top of the dozens already making their way through the courts.

Among the reasons listed in the Defendants motion to dismiss are lack of jurisdiction, claims are time-barred, no exception to statute of limitations, failure to state RICO claims, failure to adequately allege racketeering activity and a conspiracy, failure to adequately plead antitrust violations, among others. These have not been resolved.

Along the way, the municipalities filed a voluntary dismissal without prejudice (they can sue again if they want) against coal companies Arch Resources, Inc. and Peabody Energy Corporation. 

The case is not asking for a specific amount of dollars in restitution. Instead, they are asking for damages that will provide sufficient restitution to the municipalities and their citizens for the money they have spent and will spend because of the Defendants alleged wrongful conduct and for enough money to “sufficiently punish” the Defendants and dissuade them from the same conduct in the future. This amount will be determined at trial.

Meanwhile the second case, The Municipality of San Juan v. Exxon Mobil Corp. et al. (3:23-cv-01608), is nearly a carbon copy of the first federal RICO lawsuit except that it is not a class-action. In fact, some of the defendants in the case refer to this one as a “copycat” of the other one. The San Juan lawsuit adds a little bit more flair throughout the document, ending its table of contents with a 2023 quote from Secretary General Guterres (whose name is misspelled as “Gutierrez”): “Climate breakdown has begun.”

In May 2024, the Court issued an order that states the San Juan case “involves the same factual and legal questions” as Municipalities v. Exxon et al. and opined the two cases should be consolidated into one. Whether the two cases will actually become one remains to be seen. The Defendants filed a joint motion in Municipalities v. Exxon et al. in opposition to consolidating the cases, stating there are “threshold issues pending in the San Juan case that should be resolved” before any consolidation. In fact, they asked the San Juan case be dismissed by arguing the consolidation request “appears to be a pretext to relitigate issues in this case that it already waived or forfeited in the San Juan case.” They oppose any formal consolidation of the cases but are not opposed to coordinating deadlines between the two cases.

Similar to the municipalities case, defendants have filed several motions to dismiss that have not been resolved.

API, a trade association for the oil and gas industry, is the only defendant in the San Juan case that was not a part of the original defendants in Municipalities v. Exxon et al., as noted in the court’s consolidation order. Instead, it was added in with the amended complaint which added the other 21 municipalities as plaintiffs.

San Juan also asked for trial by jury. They are asking for the same restitution as Municipalities v. Exxon et al.

So that’s basically what has happened so far with each of these cases, truncated a little to make it less than 2,000 words. The TL;DR of the story is that not much has happened since the three cases were first presented at some point over the last two years. None have even come close to actually going to trial, which would be a goldmine for every single journalist, activist, and lawyer on Earth even remotely interested with climate issues because it would force all of these fossil fuel companies to explain what they knew and when they knew it in front of the court. Most cases settle out of court because they do not want their dirty laundry aired out. 

I hope this little primer can help people get up to speed on these cases if you did not know a lot about them.