Last week, the Attorney General of Michigan announced that her office “will begin seeking proposals from attorneys and law firms . . . to pursue litigation related to the climate change impacts caused by the fossil fuel industry on behalf of the State of Michigan.” This is a noteworthy development, to say the least.

While climate change tort litigation by state and local governments directed against the fossil fuel industry has been going on for several years--albeit without a successful verdict awarding money damages, as yet--the number of new cases filed has been relatively modest. This dearth of new litigation is likely due to a number of factors, among them that several of the existing cases have been dismissed on various procedural grounds, and thus posing the risk of a significant potential expense that a public entity could incur without reward. This proposal by the Michigan Attorney-General--which would appear to invite contingency fee litigation--may enable state and local governments to pursue this type of litigation without a significant outlay of funds. Further, this proposal may be surfacing at this time as several recent court rulings have limited the procedural roadblocks that, until now, have stymied this litigation pathway.

In short, this action by the Michigan Attorney General may signal a new era of public entity climate change tort litigation against major fossil fuel companies, with an accompanying increase in potential legal liability, and thus greater risks involved in operating that type of business. Indeed, the specter of litigation--even if unsuccessful--may also shape the circumstances by discouraging involvement with the fossil fuel industry.