Investors are ‘flying blind’ to climate lawsuit risks

Polluting companies could be liable for trillions in damages from climate lawsuits, but few investors and regulators are taking these risks into account, according to new research by the Oxford Sustainable Law Programme.

The study revealed that 2,485 climate lawsuits have been filed globally to date, with their growing impact presenting significant risks for some of the world’s biggest carbon emitters.

However, the research found that analysis used by investors to assess the climate-related financial risks of companies, including the likes of oil and gas supermajors, fails to satisfactorily account for legal developments.

It highlighted that organisations tasked with providing frameworks for assessing climate risks, such as the International Sustainability Standards Board and The Network for Greening the Financial System, lump in legal risk with “transition risks” and provide “little to no” detail on how to evaluate them.

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Professor Thom Wetzer, lead author of the study and director of the Oxford Sustainable Law Programme, said: “Financial risk is the dominant frame through which investors and regulators engage with climate change.

“Against a backdrop of increasingly impactful climate litigation and regulatory enforcement actions, which shift and amplify climate risks, we argue that current climate risk assessments misrepresent the distribution and scale of climate-related financial risks.

“That means investors end up investing in the wrong projects and run risks that neither they nor regulators understand, thereby further aggravating the financial risks climate change entails,” he explained.

According to the study, climate litigation presents direct threats to companies through successful lawsuits, but it can also hurt businesses in other ways, including by raising borrowing costs or by forcing policy changes such as subsidy reductions.

Chevron and Shell’s impact

The analysis revealed case studies of potential companies liable to climate lawsuits, such as US oil and gas supermajor Chevron. It outlined that the company could be liable for up to $8.5trn, with its profits valued at $291bn between 1990 and 2019.

“It’s possible that Chevron’s business may in fact be net value-destroying,” explained Dr Rupert Stuart-Smith, co-author of the study and senior research associate at the Oxford Sustainable Law Programme.

The research also identified how companies can be held accountable for their contributions to specific climate-related disasters. Under this approach, UK oil and gas supermajor Shell would have an annual liability of $0.55bn if held accountable for their contribution to two disaster events.

For example, Hurricane Harvey resulted in an estimated $90bn in losses in 2017, of which $13bn was attributed to anthropogenic climate change. Accordingly, Shell’s 2.12% contribution to historical greenhouse gas emissions corresponds to $276m in attributable losses from this one event, the study highlighted.

The analysis also set out five ways that climate-related legal risks could be assessed by investors and regulators, including market-impact analysis; analysis using the social cost of carbon; attribution of climate change damages; estimating costs of accelerated climate mitigation, and qualitative analysis.

“Policymakers, investors, and companies have accepted the need to understand climate risk exposures. But doing so diligently means engaging with the law through research that combines legal reasoning with financial analysis and climate science. Else, they will continue to fly blind in their treatment of climate risk,” Wetzer concluded.