This comment is on behalf of the American Tort Reform Association (ATRA), a broad-based coalition of businesses, associations, and professional firms that share the goal of ensuring fairness, balance, and predictability in civil litigation. As our mission reflects, ATRA’s expertise is in litigation, not climate science. For that reason, our comment does not address the specific scientific findings in the DOE’s Climate Working Group (CWG) paper, “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate.” ATRA has, however, closely followed climate change litigation in our nation’s courts, filing amicus (friend of the court) briefs in these cases. What we have learned suggests that the DOE and others should carefully scrutinize climate “science” to ensure that it is the product of objective research rather than developed to support the litigation goals of political, profit-motivated contingency-fee lawyers retained by state and local governments.
For the past decade, states and political subdivisions have filed lawsuits against various combinations of energy companies, seeking to shift costs they attribute to global warming to companies that have supplied our nation’s energy needs. There are about three dozen pending climate change lawsuits filed by states and political subdivisions. For example, Boulder, Colorado is seeking to subject just two energy companies to liability for all of its “costs associated with wildfire response, management, and mitigation; costs to repair and replace existing flood control and drainage measures and to repair flood damage; costs of managing and responding to increased drought conditions; and costs to repair physical damage to Boulder’s buildings.”[1] Other lawsuits name anywhere from five to dozens of companies in various aspects of the energy industry, including local retailers in an effort to keep the cases in state court.
This round of climate litigation emerged after lawyers, activists, and funders joined in La Jolla, California in 2012 to brainstorm litigation strategies.[2] The “ultimate goal” of at least some participants was to “shut down” the coal, gas, and oil industries, but to “start out by asking for compensation for injured parties.”[3] Since that time, activists and attorneys have given private briefings to government officials, urging them to initiate climate change-related investigations of and litigation against energy producers and others in the energy industry.[4] Most of these lawsuits are litigated by private law firms and lawyers paid by advocacy groups and placed in the AG office to bring these lawsuits, rather than through a government’s neutral publicly-funded attorneys.[5] State and local governments often retain the outside attorneys that bring these suits on a contingency-fee basis, adding a profit motive to the litigation. With eyes on a massive settlement, these law firms could receive hundreds of millions or billions of dollars.
These lawsuits typically rely on novel legal and scientific theories, including efforts to expand state liability law beyond any recognizable boundaries.[6] Thus far, these lawsuits have not been successful, but many remain in active litigation and have been allowed to proceed. Should they advance to trial, attorneys representing state and local governments will need (or, at least, should be required) to present “causation evidence” tying a company’s tortious or unlawful activities to the government’s costs. As far back as the La Jolla conference, the advocates behind this litigation have acknowledged “vexing issues” concerning the extent to which “localized environmental impacts can be accurately attributed to global warming and how, in turn, global warming impacts might be attributed to specific carbon emitters or producers.”[7] Despite these limitations, attendees committed to pursuing litigation “whether or not the attribution would hold up in court.”[8] Where causal connections were “difficult to link,” climate activists committed to a variety of approaches to create a nexus.[9]
Over the past few years, academics and others associated with this effort have put forth studies seeking to tie companies’ products and services to specific weather events they assert were made more destructive because of climate change. Our concern is that some of these climate-change studies, which are often referred to as “attribution science” or “extreme-event attribution,” may be nothing more than reverse-engineered efforts to justify liability against energy companies—not real science. For example, one Oxford climate expert has acknowledged that she talks “a lot with lawyers” about how attribution science could be used as a litigation tool.[10] “Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind,” she candidly acknowledged.[11] “The attribution research can be used by the plaintiffs to really flesh out that causal chain, all the way from the fossil fuel industry’s contributions to climate change to specific injuries that they are now dealing with, such as the effects of sea-level rise on coastal communities and infrastructure,” a senior fellow at Columbia Law School’s Sabin Center for Climate Change Law observed.[12]
As DOE finalizes the draft report, we respectfully suggest supplementing it to review the scientific integrity of these studies and recognize that, when setting climate policy—either through regulation or in the courts—it is important to follow the science, not a predisposed policy or litigation position.[13]
[1] See County Comm’rs of Boulder County v. Suncor Energy USA, Inc., No. 24SA206, 2025 WL 1363355, at *2 2025 CO 21 (Colo. May 12, 2025). 2025 WL 1363355 (quoting amended complaint), petition for cert. pending, Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, No. 25-170.
[2] See generally Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control, Summary of the Workshop on Climate Accountability, Public Opinion, and Legal Strategies (Union of Concerned Scientist and Climate Accountability Inst., Oct. 2012) (“La Jolla Paper”).
[3] Id. at 13.
[4] See, e.g., Terry Wade, U.S. Prosecutors Met with Climate Groups as Exxon Probes Expanded, Reuters, Apr. 15, 2016.
[5] One law firm, for example, advertises that it represents seven states, the District of Columbia, sixteen cities and counties, and two tribes in climate change litigation. See Sher Edling LLP, Climate Damage and Deception, https://www.sheredling.com/cases/climate-cases/ (last visited Aug. 26, 2025).
[6] See ATRA, The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance “Super Tort”, at 8-11 (Mar. 2025).
[7] La Jolla Paper, supra, at 15.
[8] Id. at 19.
[9] See id. at 15-20.
[10] Jennifer Hijazi, Science Might Help Win Climate Cases. Here’s How, E&E News by Politico, July 23, 2019 (quoting Friederike Otto, a climate expert at the University of Oxford).
[11] Maxine Joselow, Science Could Aid Climate Cases. Big Oil is Fighting It, E&E News by Politico, Apr. 16, 2021 (quoting Ms. Otto).
[12] Id. (quoting Jessica Wentz).
[13] The report contains a single mention of an organization’s use of non-peer reviewed findings to serve litigation on page 95.